Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/executivepowerinOOchamrich 


THE 

EXECUTIVE  POWER 


IN  THE 


UNITED  STATES:     ^  ^  - 


A  STUDY    OF 


CONSTITUTIONAL  LAW. 

BY 

ADOLPHE  DE  CHAMBRUN. 


TRANSLATED  FROM  THE  ORIGINAL  FRENCH 
BY 

MRS.  madblei:n'e  yinton  dahlgren. 


Yotesi  cannot  insure  equal  rights  to  all. 

Taxes  are,  or  should  be,  paid  to  support  the  institutions 
of  society — not  for  the  pur5)o&3  of  placing; certain  men  in 
office.  :    '  :   '■[  ]   '  '   ,  >-  > 


LANCASTER,  PA. 

INQXnHBB  PBINTINO  AKD  PTTBLISHIITG  OOMPAWT. 
1874. 


^^<^: 


g5 


Entered  according  to  Act  of  Congress,  In  the  year  1874,  by 

Mrs.  MADELEINE  VINTON  DAHLGREN, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Lancaster,  Pa. 

IiTQUiREB  Printing  and  Publishing  Company, 

Stereotypers  and  Printers. 


^5* 


PREFACE. 


ERRATA. 


Preface,  p.  1,  line  14,  for  "have"  read  "  prove;"  line  15, 
for  "  experiments"  read  "  experiment." 

Chapter  II.,  page  52,  line  8,  for  "  Eussa"  read  "  Russia." 

P.  122,  line  9,  for  "  repell"  read  "  repel." 

P.  127,  line  12,  interpolate  the  between  *'  executive"  and 
"  preponderating," 

P.  176,  line  14,  for  ca  ira  read  ga  ira. 

P.  7,  Opinions  of  the  Press,  line  30,  for  "  open"  read 
"  pen." 


xuio  vvjiuijuc  uueis  anew  auu siFiKing  Illustration  of 
the  fact  that  many  of  the  characteristics  and  tendencies 
of  a  nation  are  better  understood  and  appreciated  by 
foreigners  than  by  native  citizens.  The  foreign  student 
has  an  advantage  in  the  stand-point  from  which  he 
makes  his  observation.  He  studies  the  institutions 
from  a  distance,  and  is  able  to  measure  them  by  other 
standards  with  less  bias,  perhaps,  than  those  whose 
opinions  have  become  a  part  of  the  public  thought  of 

(iii) 


266132 


.OS 


IiTQUiBEB  Printing  and  Publishing  Company, 
Stereotypers  and  Printers. 


a  t> 


PREFACE. 

It  will  be  generally  conceded  that  the  most  profound 
and  searching  discussion  of  the  democratic  principle 
and  of  the  character  and  tendencies  of  the  Government 
of  the  United  States,  which  has  appeared  in  modern 
times,  is  that  of  De  Tocqueville.  Many  of  his  chapters 
sound  like  prophecy  when  read  in  the  light  of  recent 
events.  The  monograph  of  the  Marquis  De  Chambrun 
on  the  Executive  Power  of  the  United  States  is  a  worthy 
continuation  of  De  Tocqueville's  discussion.  It  is  the 
first  of  a  series  of  four  volumes,  which  the  author  pro- 
poses to  publish,  on  the  several  departments  and  func- 
tions of  our  Government.  Should  the  series  be  com- 
pleted with  the  thoroughness  and  ability  manifested 
in  this  volume,  it  will  have  a  repertory  of  the  most 
valuable  political  results  of  our  republican  experiments. 

This  volume  offers  a  new  and  striking  illustration  of 
the  fact  that  many  of  the  characteristics  and  tendencies 
of  a  nation  are  better  understood  and  appreciated  by 
foreigners  than  by  native  citizens.  The  foreign  student 
has  an  advantage  in  the  stand-point  from  which  he 
makes  his  observation.  He  studies  the  institutions 
from  a  distance,  and  is  able  to  measure  them  by  other 
standards  with  less  bias,  perhaps,  than  those  whose 
opinions  have  become  a  part  of  the  public  thought  of 

(iii) 
266132 


IV  PREFACE. 

the  country  whose  institutions  they  discuss.  This 
truth  has  frequently  been  exemplified  in  the  criticism 
of  National .  literature. 

It  is  worthy  of  remark  thet  the  efforts  to  recover  the 
fame  of  Shakespeare  from  the  oblivion  into  which  it 
had  fallen  at  the  end  of  the  Itth  century  was  made  by 
men  who  did  not  speak  the  language  of  Shakespeare. 
It  was  to  Yoltaire,  Goethe  and  Schlegel,  that  the  world 
was  chiefly  indebted  for  the  Shakespearian  revival. 

This  volume  of  the  Executive  Power  of  the  United 
States  is  another  striking  illustration  of  the  same  truth, 
applied  to  political  philosophy.  While  the  author  is 
an  ardent  supporter  of  republican  government,  he  has 
evidently  escaped  the  error  that  so  many  writers 
have  fallen  into — that  of  believing  that  our  forms  can 
be  safely  adopted  by  all  nations. 

Throughout  the  volume  the  author  keeps  two  objects 
constantly  in  view,  viz.:  To  study  our  institutions  in 
relation  to  the  traditions,  spirit  and  tendencies  of  our 
own  people ;  and  to  ascertain  what  features  of  our  in- 
stitutions are  adapted  to  the  tradition  and  spirit  of 
European  nations.  This  comparative  study  will  be 
most  interesting  to  the  student  of  political  philosophy. 

In  discussing  the  relation  of  the  office  of  the  Yice- 
President  to  our  system,  the  author  notices  the  fact, 
which  I  think  has  not  been  elsewhere  discussed,  that 
the  office  of  Yice-President,  while  it  is  valuable  for  the 
purposes  of  an  election — the  candidate  being  usually 
selected  with  a  view  to  supplementing  the  opinions  of 
the  candidate  for  the  Presidency — yet  this  very  fact 
makes  the  Vice-President  an  inharmonious  element  for 


PREFACE.  V 

purposes  of  administration.  The  author  traces  to  this 
cause  the  fact  that  whenever  our  Vice-President  has 
become  President,  his  administration  has  not  been  satis- 
factory to  the  country.  On.  the  whole,  the  author  doubts 
the  value  of  the  office  of  Yice-President,  and  says  that 
our  example  in  this  particular  should  not  be  followed 
elsewhere. 

After  giving  a  masterly  analysis  of  the  constitutional 
power  of  the  Executive,  the  author  discusses  the  ad- 
vantages and  disadvantages  af  the  frequent  changes  in 
the  Presidency  by  popular  elections,  and  concludes  that 
the  instability  of  the  office  is  in  the  interest  of  liberty. 

The  fourth  chapter  contains  a  very  clear  and  inter- 
esting sketch  of  the  conflicts  that  have  occurred  from 
time  to  time  between  the  Executive  and  the  Legislative 
departments,  and  concludes  with  the  declaration  that 
on  the  whole  "  The  prerogatives  of  the  President  are  to- 
day nearly  what  they  were  in  the  time  of  Washington, 
though  they  have  been  rather  increased  than  dimin- 
ished." 

The  chapters  of  this  work  which  will  be  of  most 
interest  to  the  people  of  the  United  States  are  those  in 
'which  the  author  discusses  the  effects  of  the  late  civil 
war  upon  our  system  of  government.  It  is  hardly 
possible  for  those  who  have  been  actors  in  the  Execu- 
tive, Legislative,  or  Judicial  Departments  of  the  Gov- 
ernment to  realize  the  changes  which  recent  events 
have  produced.  The  author  of  these  .chapters  has 
rendered  a  great  service  to  every  thoughtful  American, 
in  setting  forth  with  remarkable  clearness  and  force  the 
changes  which  recent  events  have  wrought.  ' 


VI  PREFACE. 

Starting  from  the  antagonistic  views  of  Hamilton 
and  Jefferson,  the  one  insisting  upon  a  strong  central 
Government — ^the  other  upon  the  preponderance  of 
power  in  the  people  and  the  States — the  author  traces 
clearly  the  influence  of  those  two  forces  upon  all  our 
subsequent  history,  and  predicts  that  the  safety  of  our 
system  depends  upon  the  equilibrium  of  these  two  forces. 
He  concludes  this  portion  of  his  discussion  by  saying 
that  "  so  long  as  political  activity  in  the  States  remains 
undiminished,  and  the  existing  division  of  sovereignty 
between  them  and  the  national  government  continues, 
the  equilibrium  will  not  be  deranged.  The  Executive 
authority  cannot  imperil  the  Constitution,  unless  the 
local  autonomies  first  disappear  or  become  sensibly 
weakened." 

The  author  has  been  peculiarly  fortunate  in  his  selec- 
tion of  the  translator.  His  thought  has  been  faithfully 
rendered  into  clear  and  elegant  English  ;  and  the  work 
has  been  done  with  so  much  grace  that  the  reader  dis- 
covers nothing  in  the  style  to  indicate  that  it  is  a  trans- 
lation. 

JAMES  A.  GARFIELD. 

Washington,  March  16,  1874. 


NOTICE. 

Since  1776,  when  the  thirteen  colonies  of  North  America 
proclaimed  their  Declaration  of  Independence  and  defined  the 
principles  of  modern  democracy,  we  have  beheld  the  decay  or 
transformation  of  feudalism  almost  everywhere  in  Europe. 

In  view  of  such  a  state  of  things,  the  historian  and  the 
statesman,  without  yielding  to  the  promptings  of  the  heart,  or 
to  the  flights  of  the  imagination,  should  calmly  observe  and 
classify  facts  and  strive  to  deduce  therefrom  the  laws  that  reg- 
ulate the  political  progress  of  nations. 

If,  then,  we  inquire  what  forms  of  government  democratic 
nations  may  substitute  for  those  of  the  past,  we  are  naturally 
led  to  study  the  organization  of  the  American  republic.  In 
pursuing  such  researches,  the  most  suitable  order  to  follow  is 
that  invariably  adopted  by  the  Federal  Constitution,  as  well  as 
the  constitutions  of  the  thirty-seven  States  of  the  Union. 
Attention  should  be  given  first  to  the  national  sovereignty 
and  the  supreme  power  of  the  people ;  and  then  to  the  organi- 
zation of  the  legislative,  the  executive  and  the  judicial 
branches  of  the  government. 

It  has  appeared  to  me,  however,  that  such  a  work,  for  which 
much  material  has  been  slowly  gathered,  might  properly  be 
divided  into  four  almost  entirely  distinct  parts,  and  each  of 
them  be  treated  in  a  separate  publication.  Acting  upon  that 
impression,  I  have  not  hesitated  to  issue  in  the  first  place 
this  monograph  on  The  Executive  Power. 

The  question  which  it  is  proposed  to  examine  in  the  book 

now  submitted  to  the  public  is  this :    How  have  a  democratic 

people  succeeded  in  organizing  an  executive  power  which  was, 

up  to  a  certain  point,  to  take  the  place  elsewhere  occupied  by 

(vii) 


Vlll  NOTICE. 

historic  royalty,  or  by  that  constitutional  monarchy  of  which 
England  has  produced  the  model  ? 

Inasmuch  as  the  knowledge  I  have  acquired  of  the  Consti- 
tution of  the  United  States  has  been  principally  gained  in  the 
course  of  an'  intimate  association  with  some  eminent  men,  I 
desire  to  mention  Senator  Charles  Sumner,  Mr.  Caleb  Gushing 
and  Senator  Schurzas  those^^owhom  I  am  the  most  indebted. 

JCbe  literary  world  of  Europe  will  soon  be  in  possession  of 
the  complete  works  of  Mr.  Sumner.  It  will  then  be  able  to 
appreciate  the  vast  learning  of  this  statesman,  to  understand 
his  superior  nature,  and  to  catch  at  least  the  faint  echo  of 
those  austere  and  eloquent  utterances,  which  I  have  never 
heard  without  being  reminded  of  what  the  cotemporaries  of  our 
Royer-Collard  have  told  us  of  him. 

After  Mr.  Sumner,  I  have  named  that  jurisconsult  who  has 
never  separated  the  cultivation  of  letters  from  the  study  of 
law,  and  whose  attention  has  been  alternately  directed  to  the 
most  diverse  branches  of  human  knowledge  ;  after  having  filled 
the  highest  political  positions  to  which  an  American  may 
aspire,  he  has  retired  from  the  arena  of  political  parties,  re- 
serving to  himself  only  the  right  of  judging  their  acts. 

Finally,  I  have  spoken  of  Senator  Schurz,  a  German,  natu- 
ralized in  the  United  States ;  he  has  applied  to  the  study  of 
the  institutions  of  the  country,  to  which  he  has  forever  promised 
allegiance,  the  rigorous  methods  of  European  criticism,  and 
thus  imparted  those  enlarged  views  and  that  political  philoso- 
phy which  give  to  his  speeches  and  writings  a  lasting  value. 

I  take  the  liberty  to  place,  under  the  protection  of  these 
distinguished  men,  the  work  of  which  I  ofifernow  to  the  public 
the  first  portion  .1 

Washington,  February  18,  1873. 

1  The  works  to  which  I  refer  are  always  quoted,  so  as  to  be  as 
accessible  as  possible  to  the  European  reader.  Thus,  for  example, 
when  I  have  found  the  decisions  of  the  Supreme  Court  reprinted 
in  books  which  could  be  easily  procured,  1  have  cited  the  latter  in 
preference  to  the  reports  of  that  tribunal. 


TABLE  OF  CONTENTS. 


PAOK. 

Iktboduction 11 

CHAPTER  I. 
Election  of  Peesident  and  Vice-president 19 

CHAPTER  II. 
^Constitution  of  the  Executive  Power 52 

CHAPTER  III. 

Of  Functionaries  charged  with  Administrative  A  c- 
TION \ 77 

CHAPTER  IV. 
jJIelations  of  the  President  to  Congress 94 

CHAPTER  V. 
The  Power  of  Declaring  War 116 

'  CHAPTER  VI. 

CHELATIONS  OF  THE   PRESIDENT  TO  THE  JUDICIAL   PoWER 

OF  THE  Union 125 

CHAPTER  VII. 
The  Federal  Administration 149 

CHAPTER  VIII. 
The  Senate  as  an  Executive  Council 195 

(ix) 


X  TABLE    OP -CONTENTS. 

PAGE. 

CHAPTER  IX. 
Relations  op  the  President  to  the  States 223 

CHAPTER  X. 
What  the  Executive  Power  became  under  Mr.  Lin- 
coln   237 

CHAPTER  XI 
Impeachment  and  Acquittal  of  President  Johnson...  258 

CHAPTER  XII. 

Causes  which  might  Modipy  the  Constitution  op  the 
United  States 278 


INTRODUCTION. 

The  organization  of  the  Executive  Power  in  a  re- 
public offers  the  greatest  difficulties.  It  should  have 
vigor  and  capacity  to  meet  the  necessities  of  the  gov- 
ernment without  proving  an  obstacle  to  the  develop- 
ment of  the  liberties  of  the  country. 

There  would  seem  to  be,  at  first,  almost  a  contradic- 
tion between  propositions  so  dissimilar,  and  yet,  if  they 
cannot  be  harmonized,  the  republic  will  either  be  lost 
in  anarchy  or  replaced  by  military  despotism. 

From  the  moment  when  the  American  people  decided 
that  they  would  thenceforth  live  under  democratic  and 
republican  institutions,  questions  regarding  the  consti- 
tution of  the  Executive  Power  were  naturally  presented 
for  their  consideration.  The  most  opposite  opinions 
on  the  subject  were  at  once  expressed,  traces  of  which 
will  be  found  in  the  debates  which  took  place  in  the 
Constitutional  Convention  of  Philadelphia.^ 

Alexander  Hamilton's  plan  provided  for  the  vesting 
of  the  supreme  executive  authority  in  a  Governor,  to  be 
chosen  by  electoral  colleges,  and  to  serve  during  good 
behavior,  his  authorities  and  functions  to  be  as  fol- 
lows :  To  have  a  negative  on  all  laws  about  to  be 
passed,  and  the  execution  of  all  laws  passed ;  to  have 
the  direction  of  war,  when  authorized  or  begun ;  to 

1  The  convention  of  1787  delibei-ated  with  closed  doors.    James 
Madison,  one  of  its  members,  drew  up  a  summaiy  of  these  debates, 
which  has  been  published  under  the  title  of  "  The  Madison  Papers." 
(xi) 


Xll  INTRODUCTION. 

have,  with  the  advice  and  approbation  of  the  Senate, 
the  power  of  making  all  treaties  ;  to  have  the  sole 
appointment  of  the  heads  or  chief  officers  of  the  de- 
partments of  finance,  war  and  foreign  affairs  ;  to  have 
the  nomination  of  all  other  officers  (ambassadors  to 
foreign  nations  included),  subject  to  the  approbation  or 
rejection  of  the  Senate ;  to  have  the  power  of  pardon^ 
log  all  offenses,  except  treason,  which  he  could  not 
pardon  without  the  approbation  of  the  Senate.  *'  On 
the  death,  resignation  or  removal  of  the  Governor,  his 
authorities  shall  be  exercised  by  the  president  of  the 
Senate  until  a  successor  be  appointed."  ^ 

At  the  time  that  Hamilton  thus  proposed  to  create 
a  strong  power,  another  member  of  the  convention, 
Roger  Sherman,  maintained,  on  the  contrary,  that  the 
executive  magistrate  should  be  simply  the  agent  of 
the  legislature.  Others  went  still  further  by  even 
denying  the  principle  of  unity,  and  insisting  that  the 
Executive  Power  could  not  be  confided  to  one  man 
without  danger  to  liberty. 

After  ela^)orate  discussions,  the  convention  finally 
agreed  and  adopted  a  compromise.  It,  in  the  first 
place,  recognized  the  principle  of  unity,  and  committed 
the  Executive  PoweMo.  a  single  magistrate,  who  was 
to  be  elected  for  four  years.  In  the  second  place,  that 
power  was  constituted  one  of  the  three  "  co-ordinate 
and  independent"  branches  of  the  government,  and 
clothed  with  considerable  prerogatives.  It  was  finally 
decided  that  no  constitutional  council  should  be  as- 
signed the  President,  but  that  he  should  be  the  acting 

1  The  Madison  Papers,  Vol.  II.,  p.  890  et  seq. 


INTRODUCTION.  XIH 

and  responsible  head  of  the  federal  administration. 
These  principles  are  all  set  forth  in  the  Constitution, 
and  for  more  than  eighty  years  have  been  of  constant 
application. 

It  cannot  be  said  that  the  members  of  the  conven- 
tion were  entirely  satisfied  with  their  work.  When 
defending  it  before  the  Yirginia  Convention,  James 
Madison  frankly  avowed  that  the  organization  of  the 
Executive  Power  was  attended  with  peculiar  difficulties, 
and  it  is  worthy  of  remark  that  he  simply  asserted 
that  the  convention  had  acted  for  the  best. 

Notwithstanding  the  doubts  he  expressed  on  the 
subject,  that  PoWer  has  remained  such  as  it  was  con- 
ceived by  the  convention.  It  has  met  the  wants  of  a 
free  people,  and  been  able  to  resist  formidable  dangers. 

Thus,  to  explain  why  this  has  been  so,  is  the  princi- 
pal aim  of  the  present  volume. 

However,  it  would  not  answer  for  other  nations  who 
are  inclined  to  adopt  "  a  republican  form  of  govern- 
ment," to  believe  that  they  can  copy  the  Federal  Con- 
stitution and  solve,  as  the  Americans  have  done,  the 
problems  regarding  the  powers  and  prerogatives  of  the 
President.  Republican  institutions  in  the  United 
States  were  founded  in  historic  right.  The  thirteen 
colonies  lived  under  democratic  laws  long  before  their 
separation  from  the  mother  country.  At  the  same  time 
the  inhabitants  of  English  birth  brought  with  them  all 
the  customs  of  Anglo-Saxon  liberty. 

They  had,  gradually,  established  in  the  new  world  a 
close  alliance  between  democracy  and  free  institutions, 
which  eventually  gave  rise  to  the  republic.      It  had 


XIV  INTRODUCTION. 

existed  in  the  national  manners  before  it  received  its 
definitive  form;  and  those  who  proclaimed  it  only 
recognized  and  gave  effect  to  a  long  established  state 
of  things. 

This  is  true  to  such  an  extent  that  it  is  difficult 
to  find  in  the  writings  of  that  day  a  satisfactory  ex- 
planation of  the  manner  of  adopting  the  "  republican 
form  of  government"  in  the  United  States.  Some 
years  before  his  death  Thomas  Jefferson  carefully  pre- 
pared a  memoir,  wherein  he  recounts  the  part  that  he 
had  taken  in  the  struggle  of  the  thirteen  colonies, 
in  the  Declaration  of  Independence,  and  in  the  suc- 
ceeding events.  The  word  republic  is  not  once 
mentioned  in  this  work. 

The  convention  was  not  appointed  to  choose  between 
different  forms  of  government ;  its  mission  was  restrict- 
ed to  the  formation  of  such  institutions  as  were  best 
adapted  to  the  country.  Thus  the  republic  has  been 
able  to  maintain  itself  in  the  United  States,  because  it 
represents  public  sentiment  and  national  traditions.  It 
performs  there,  in  some  respects,  a  similar  part  to  that 
which  has  been  elsewhere  enacted  by  monarchies  or 
historical  aristocracies. 

.  In  the  second  place  the  convention  was  called  upon 
to  find  the  best  possible  compromise  between  the  local 
autonomies,  which  had  for  a  long  time  existed,  and  the 
central  government  it  was  about  to  create.  It  divided 
the  sovereignty  then  between  the  states  and  the  federal 
government,  and  conferred  upon  the  latter,  by  the  con- 
sent of  the  people  to  whom  it  owed  its  existence,  only 
certain  limited  powers  specifically  enumerated  in  the 
Constitution. 


INTRODUCTION.  XY 

Out  of  this  arose  a  division  of  powers  which  cannot 
elsewhere  be  imitated. 

In  short,  the  United  States  did  not  from  the  begin- 
ning propose  to  follow  in  the  footsteps  of  other  na- 
tions. They  desired  to  "  form  a  government  capable 
of  extending  to  its  citizens  all  the  blessings  of  civil  and 
religious  liberty,  capable  of  making  them  happy  at 
home.  This,  and  not  conquests  or  superiority,  is  the 
great  object  of  republican  systems."  "  If  they  are  suf- 
ficiently active  and  energetic,"  said  one  of  their  distin- 
guished statesmen,  "  to  rescue  us  from  contempt  and 
preserve  our  domestic  happiness  and  security,  it  is  all 
that  we  can  expect  from  them."^ 

In  other  words,  the  American  Republic  enjoys  the 
inestimable  advantages  which  result  as  well  from  a 
constant  national  tradition  as  from  a  perfectly  logical 
division  of  powers  between  vigorous  autonomies  and 
the  central  institutions.  It  should,  therefore,  seek  its 
perpetuity  in  the  peaceful  development  of  its  own  vital 
forces,  and  maintain,  as  far  as  practicable,  an  isolated 
position  among  other  nations. 

The  people  of  other  countries,  who  are  considering 
the  expediency  of  establishing  American  institutions, 
should  only  do  so  with  ihe  most  guarded  caution.  The 
object  of  the  following  expositions  is,  however,  merely 
to  explain  how  the  Executive  Power  is  organized  in  the 
United  States.  The  European  reader  must  decide  to 
what  extent  the  forms  of  American  institutions  can  be 
introduced  in  countries   having    a   monarchical   past, 

1  The  Madison  Papers,  Vol.  II.,  p.  95  et.  scq.;  speech  of  Mr.  Pinck- 
ney. 


XVI  INTRODUCTION. 

where  the  system  of  centralization  has  thrust  its  roots 
far  and  deep,  and  where  exterior  action  has  become  a 
necessary  condition  of  national  life. 

But  it  is  impossible  to  enter  upon  the  study  of  pro- 
blems so  complicated  as  those  which,  even  in  the 
United  States,  arise  out  of  the  organization  of  the  Ex- 
ecutive Power,  without  at  once  recurring  in  thought 
to  M.  de  Tocqueville,  and  feeling  serious  apprehension 
at  the  boldness  of  treating  a  subject  upon  which  he 
has  shed  a  flood  of  light.  "  Democracy  in  America" 
can  neither  be  equaled  nor  repeated.  Its  appearance 
inaugurated  a  new  epoch  in  political  science,  and  it 
was  at  once  classed  among  that  small  number  of  writ- 
ings which  have  advanced  this  very  important  branch 
of  human  knowledge.  However,  since  the  publication 
of  this  masterly  work,  events  of  the  gravest  import 
have  occurred  in  the  United  States.  The  Federal  Con- 
stitution has  been  subjected  to  trials,  foreseen  indeed 
by  M.  de  Tocqueville,  but  the  consequences  of  which 
his  premature  death  prevented  him  from  measuring. 
Learned  researches  and  numerous  publications  have 
thrown  new  light  upon  the  authority  of  the  national 
government  over  the  several  States  and  the  people. 
There  is,  perhaps,  an  advantage  in  exhibiting  the 
changes  that  have  taken  place,  and  in  analyzing  the 
views  recently  expressed  by  authors  and  statesmen, 
whose  opinions  are  of  acknowledged  authority.  Never- 
theless it  may  be  safely  asserted,  that  the  literature 
relating  to  America  which  has  appeared  during  the  past 
thirty  years  has  not  deprived  the  "  Democracy"  of  the 
exceptional  place  it  had  acquired.     It  always  recalls 


INTRODUCTION,  XVll 

-\ 

those  chapters,  in  which  Montesquieu  made  known  to 
France  the  liberty  which  is  the  birthrigtit  of  English- 
men, and  described  the  structure  and  inner  working 
of  their  celebrated  constitution.  Other  writers  have  suc- 
ceeded the  author  of  ''L^esprit  des  lois.^^  They  have 
discussed  the  same  questions;  they  have  thoroughly 
examined  the  prerogatives  of  the  crown,  the  powers 
of  each  house  of  Parliament  and  the  relations  which 
exist  between  them ;  they  have  traced  and  explained 
the  influence  of  the  historic  causes  which  have  de- 
veloped and  perfected  those  noble  institutions.  Black- 
stone,  Brougham,  and  others  in  England  ;  Fishel,  and 
especially  Gneist,  in  Germany,  have  exhausted  the  sub- 
ject, and  yet  over  all  their  works  still  towers  the 
genius  of  Montesquieu,  ''  who  abridged  all,  because  he 
had  seen  all." 
2 


THE  EXECUTIVE  POWER 

IN 

THE  UNITED  STATES. 


CHAPTER  I. 
eIjECtion  of  president  and  vice-president. 

THE  members  of  the  convention,  in  consider- 
ing the  questions  relative  to  the  Executive 
Power,  had  to  determine  whether  the  chief 
magistrate  should  be  directly  elected  by  the  people, 
or  be  designated  by  the  legislative  power.  Each 
system  had  its  partisans.  Finally,  a  compromise 
was  adopted.  It  was  decided  that  "each  State  shall 
appoint,  in  such  manner  as  the  inhabitants  thereof 
may  direct,  a  number  of  electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which 

the  State  may  be  entitled that  the  electors  shall 

meet  in  their  respective  States  and  vote  by  ballot 
for  President  and  Vice-president."  The  Constitu- 
tion adds,  "the  votes  shall  be  forwarded  to  the 
President  of  the  Senate  at  the  seat  of  government, 
and  the  person  having  the  greatest  number  of  votes 

shall  be  the  President,  if  such  number  be  a  major- 
(19) 


20  THE  EXECUTIVE  POWER 

ity  of  the  whole  number  of  electors  appointed,  and 
if  there  be  more  than  one  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  House 
of  Eepresentatives  shall  immediately  choose  by 
ballot  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the 
list  the  said  House  shall  in  like  manner  choose  the 
President."^  If  then  the  convention  refused  to 
confide  directly  to  the  people  the  election  of  the 
President,  neither  did  it  invest  the  legislative  as- 
semblies with  so  important  a  right.  Hamilton 
has  explained,  in  the  "Federalist,"  the  motives 
which  led  to  the  adoption  of  this  compromise.^ 

"Nothing,"  said  he,  "was  more  to  be  desired 
than  that  every  practicable  obstacle  should  be 
opposed  to  cabal,  intrigue  and  corruption.  These 
most  deadly  adversaries  of  republican  government 
might  naturally  have  been  expected  to  make  their 
approaches  from  more  than  one  quarter,  but  chiefly 
from   the   desire   in   foreign    powers   to   gain    an 

improper  ascendant  in  our   councils But 

the  convention    has   guarded    against    all    danger 
of  this  sort  with  the  most  provident  and  judicious 

1  See  Constitution  of  the  United  States. 

2  The  best  commentarj'  on  the  Constitution  of  the  United  States 
is  to  be  found  in  the  "  Federalist."  It  was  written  by  Alexander 
Hamilton,  James  Madison  and  John  Jay.  The  first  two  were 
members  of  the  Thiladelphia  Convention,  This  admirable  publi- 
cation supplies,  to  some  extent,  the  void  in  American  political 
literature  occasioned  by  the  failui*e  to  record  the  full  debates  of 
that  body. 


IN  THE  UNITED  STATES.  21 

attention.  They  have  not  made  the  appointment 
of  the  President  to  depend  on  any  pre-existing 
bodies  of  men,  who  might  be  tampered  with  before- 
hand to  prostitute  their  votes;  but  they  have 
referred  it  in  the"  first  instance  to  an  immediate  act 
of  the  people  of  America,  to  be  exerted  in  the 
choice  of  persons  for  the  temporary  and  sole  pur- 
pose of  making  the  appointment;  and  they  have 
excluded  from  eligibility  to  this  trust  all  those  who 
from  situation  might  be  suspected  of  too  great  devo- 
tion to  the  President  in  office.  No  Senator,  Repre- 
sentative or  other  person  holding  a  place  of  trust 
or  profit  under  the  United  States  can  be  of  the 
numbers  of  the  electors.  Thus,  without  corrupting 
the  body  of  the  people,  the  immediate  agents  in 
the  election  will  at  least  enter  upon  the  task  free 
from  any  sinister  bias.  Their  transient  existence 
and  their  detached  situation,  already  taken  notice 
of,  afford  a  satisfactory  prospect  of  their  continuing 
so  to  the  conclusion  of  it.  The  business  of  corrup- 
tion, when  it  is  to  embrace  so  considerable  a  num- 
ber of  men,  requires  time  as  well  as  means.  Nor 
would  it  be  found  easy  suddenly  to  embark  them, 
dispersed  as  they  would  be  over  thirteen  States,  in 
any  combinations  founded  upon  motives  which, 
though  they  could  not  properly  be  denominated 
corrupt,  might  yet  be  of  a  nature  to  mislead  them 
from  their  duties."  It  was  essential,  and  this  was 
no  less  important,  that  the  Executive  Power  should 


22  THE  EXECUTIVE  POWER 

depend  on  the  people  alone  during  the  exercise  of 
its  functions.  "He  might  otherwise  be  tempted  to 
sacrifice  his  duty  to  his  complaisance  for  those 
whose  favor  was  necessary  to  the  duration  of  his 
official  consequence.  This  advantage  will  also  be 
secured  by  making  his  re-election  to  depend  on  a 
special  body  of  representatives  deputed  by  the 
society  for  the  single  purpose  of  making  the  impor- 
tant choice."  ^ 

It  is  noticeable  that  Hamilton,  who  exposes  so 
forcibly  the  grave  objections  to  the  election  of  the 
President  by  legislative  assemblies,  is  much  less 
explicit  when  he  criticises  the  system  of  direct 
election  by  the  people.  Yet  this  subject  was  sev- 
eral times  under  discussion  in  the  convention, 
but  the  members  set  it  aside  for  various  reasons, 
which  were,  notwithstanding,  very  unsatisfactory. 
They  feared  that  the  people  were  not  sufficiently 
enlightened  to  make  an  intelligent  choice  of  the 
executive  chief;  they  also  apprehended  difficulties 
as  to  the  manner  of  execution 

However  that  may  be,  the  election  of  the  Presi- 
dent by  the  National  Legislature  having  been 
rejected,  and  the  direct  election  by  the  people 
having  shared  the  same  fate,  there  remained  no 
alternative  but  to  organize,  in -the  most  satisfactory 
manner,  the  electoral  colleges. 

But  the   resulting  consequences  were  far  from 

1  The  "  Federalist/'  pp.  474-475.    Edition  of  Henry  B.  Dawson. 


IN  THE  UNITED  STATES.  23 

justifying  the  expectation  of  tlie  convention.  It 
soon  became  evident  that  the  electoral  colleges  had 
no  will  of  their  own,  and  that  their  members  were 
pledged  in  advance  to  cast  their  votes  for  a  can- 
didate designated  bj  the  party  to  which  they  them- 
selves owed  their  election.  In  this  particular  the 
system  proved  a  failure. 

But  according  to  the  Constitution,  under  certain 
contingencies,  a  second  election  could  be  held. 
This  case  speedily  occurring,  it  was  found  that 
here,  also,  experience  was  far  from  vindicating 
theory.  As  we  have  just  seen,  if  there  was  no 
choice,  either  because  no  one  candidate  received 
an  absolute  majority,  or  because  several  of  them 
obtained  an  equal  number  of  votes,  then,  by  a 
provision  of  the  Constitution,  the  House  of  Eepre- 
sentatives  moist,  in  its  turn,  resolve  itself,  if  the 
expression  may  be  allowed,  into  an  electoral  college. 
In  that  case  it  would  then  choose  the  President 
from  among  the  five  persons  who  had  the  greatest 
number  of  votes ;  or,  yet  again,  if  two  candidates 
had  the  same  majority  it  would  decide  between 
them. 

Nor  was  there  then  a  separate  vote  for  President 
and  Vice-president;  the  ballots  did  not  designate 
the  office  that  the  persons  in  whose  favor  they  were 
given  were  to  fill.  According  to  this  provision, 
the  person  who  received  the  greatest  number  of 
votes,  if  such  number  was  equal  to  a  majority  of 


24  THE  EXECUTIVE  POWER 

the  whole  number  of  electors  appointed,  became 
President,  and  the  one  who,  having  the  next  greatest 
number  of  votes,  providing  it  was  a  majority,  was 
elected  Yice-president.  But  from  the  outset  the 
people  made  a  distinction  between  these  two  offices, 
and,  in  fact,  cast  their  votes  for  President  and  for 
Vice-president.  However,  according  to  the  letter  of 
the  Constitution,  the  House  of  Eepresentatives 
might  decline  accepting  the  result  of  the  popular 
election,  and  it  was  authorized  to  select  for  the  presi- 
dential office  the  person  whom  the  people  had  in- 
tended to  choose  for  Vice-president.  But  here  also 
all  the  constitutional  combinations  were  of  no  avail. 
The  will  of  the  people  proved  stronger  than  that 
of  the  Legislature.  This  was  shown  in  the  election 
of  1801. 

This  was  the  first  which  had  devolved  upon  the 
House  of  Representatives.  Mr.  Jefferson  and  Mr. 
Burr  had  an  absolute  majority  in  the  electoral  col- 
leges. Each  of  them  received  seventy-five  votes. 
Although  the  people  had  only  nominated  Mr.  Burr 
as  Yice-president,  the  House  could  have  elected 
him'  President.  The  delegations  of  the  States 
where  the  Federalists  prevailed  proposed  to  accom- 
plish this  result.  However,  the  most  distinguished 
of  them — Hamilton — rose  under  these  circumstan- 
ces superior  to  party  considerations.  The  people's 
choice  was  Jefferson,  and  Hamilton  made  an  effort 
to  have  this  verdict  accepted  as  definitive.    Thanks, 


IN  THE  UNITED  STATES.  25 

at  least  in  a  measure  to  his  influence,  the  Demo- 
^cratic  principle  prevailed.  After  this  animated 
contest,  which  lasted  seven  days  and  seven  nights, 
the  Constitution  was  amended  by  providing  that 
the  electors  shall  meet  in  their  respective  States,^ 
and  vote  by  ballot  for  President  and  Yice-president 

they  shall  make  distinct  lists  of  all  persons 

voted  for  as  President,  and  of  all  persons  voted  for 
as  Vice-president,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and 
transmit,  sealed,  to  the  seat  of  the  government  of 
the  United  States,  directed  to  •  the  president  of  the 
Senate.  The  president  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representa- 
tives, open  all  the  certificates,  and  the  votes  shall 
then  be  counted ;  the  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President 

and  if  no  person  have  a  majority,  then  from 

the  two  highest  numbers,  not  exceeding  three  of 
those  voted  for  as  President  on  the  list,  the  House 
of  Representatives  shall  choose  immediately  by  bal- 
lot the  President;  but  in  choosing  the  President, 
the  votes  shall  be  taken  by  States,  the  representa- 
tion from  each  State  having  one  vote." ....How- 
ever, "  in  choosing,  the  President,"  adds  the  amend- 

ISoe  The  PoliticEri  Parties  in  the  United  States,  by  Martin  Van 
Buren.  Tliis  work,  written  by  a  former  President  orthe  United 
States,  cannot  be  read  too  often.  He  has  shown  mucli  impartiality 
in  his  political  views,  and  furnished  very  varied,  and,  in  general, 
very  reliable,  information. 


26  THE  EXECUTIVE  POWER 

ment,  "the  votes  shall  be  counted  bj  States,  and 
each  State  shall  have  a  vote.^ 

These  constitutional  provisions  were  applied  for 
the  first  time  in  1824.  "General  Jackson,  Mr. 
John  Qaincj  Adams  and  Mr.  William  H.  Craw- 
ford were  the  three  candidates  for  the  presidency 
who  received  the  highest  number  of  votes — 99,  84, 
41 ;  and  in  this  case  a  second  struggle  took  place 
between  the  theory  of  the  Constitution  and  the 
Democratic  principle,  and  with  eventual  defeat  to 
the  opposers  of  that  principle,  though  temporarily 
successful.     Mr.  Adams  was  elected,  though  General 

Jackson  was  the  choice  of  the  people The 

election  of  Mr.  Adams  was  perfectly  constitutional, 

and  as  such  fully  submitted  to  by  the  people 

»vAll  the  representatives  who  voted  against  the  will 
of  their  constituents  lost  their  favor,  and  disappear- 
ed from  public  life.  The  representation  in  the 
House  of  Representatives  was  largely  changed  at 
the  first  general  election,  and  presented  a  fall  op- 
position to  the  new  President.  Mr.  Adams  himself 
was  injured  by  it,  and  at  the  ensuing  presidential 
election  was  beaten  by  General  Jackson  more  than 
two  to  one— 178  to  83."2 

Thus  the  electoral  colleges  have  never  had  the 
right  of  expressing  a  free  opinion,  and,  on  the 
other  hand,  the  House  of  Representatives  has  al- 

ISee  the  Xllth  Amendment  to  the  Constitution. 

2  Thirty  Years'  View,  by  a  Senator  of  30  years.     Vol.  1,  pp.  46,  47. 


nV  THE  UNITED  STATES. 


27 


most  always  been  restricted  in  the  exercise  of  these 
functions  to  ascertaining  the  result  of  the  ballot. 

After  the  incidents  that  marked  the  elections  of 
Mr.  Jefferson  and  of  John  Quincy  Adams,  it  is 
probable  that,  whenever  this  body  is  required  to 
choose  between  three  candidates  it  will  be  satisfied 
with  the  modest  province  of  simply  registering  the 
decision  of  the  people. 

Without  here  indicating  other  inconveniences 
that  the  electoral  colleges  of  the  Union  present,  it 
is  proper  to  examine  how  far  these  constitutional 
provisions  have  assisted  a  certain  organization  of 
parties. 

In  the  United  States  the  entire  sovereignty  re- 
sides in  the  people.  They  delegate  a  portion  of  it 
to  the  federal  government,  another  portion  to  the 
States.  But  it  is  proper  to  remark  that  they  re- 
serve the  exclusive  right  to  elect,  mediately  or  im- 
mediately, the  Federal  and  the  State  functionaries. 
These  all  emanate  from  and  are  responsible  to  the 
people.  Thus,  as  is  proved  by  facts,  the  represen- 
tative is  to  such  an  extent  governed  by  his  consti- 
tuents that  he  is  almost  always  obliged  to  conform 
to  their  wishes. 

"^  Moreover,  the  powerful  organizations  of  political 
parties  come  between  the  people  and  the  represen- 
tative. They  nominate  the  candidates,  so  that  the 
sovereign  has  only  to  decide  between  the  claims  of 
persons  who,  long  prior  to  an  election,  are  selected 


28  THE  EXECUTIVE  POWER 

by  party  conventions  as  worthy  of  the  support  of 
their  adherents.  At  the  beginning  of  the  govern- 
ment, certain  meetings  of  members-  of  Congress 
(caucuses)  nominated  the  presidential  candidates. 
Thus,  in  1800,  the  representatives  of  the  Kepublican 
party  of  the  House  nominated  Jefferson ;  in  1808 
and  in  1812,  Madison ;  in  1816,  Monroe,  and  in  1824, 
Crawford. 

But  in  these  meetings,  formed  exclusively  of 
members  of  one  party,  the  majority  of  votes  only 
represented  a  small  minority  of  the  people.  Sepa- 
rated from  their  constituents,  and  yet  compelled  to 
depend  upon  them,  these  representatives  could  not 
always  expect  to  satisfy  their  wishes,  and  obtain 
their  adhesion,  so  that  this  mode  of  nomination  was 
never  entirely  accepted  by  the  people.  The  legis- 
latures of  the  most  important  States  arrogated  the 
right  of  designating  the  candidates,  or  at  least  in- 
sisted on  participating  in  the  exercise  of  it.  Thus, 
in  1812,  the  Republican  Legislature  of  New  York 
chose  a  candidate  in  opposition  to  Mr.  Madison,  and 
in  1824  the  name  of  General  Jackson  was  presented 
by  the  Legislature  of  Tennessee.  It  need  not  then 
surprise  us  if,  after  the  election  of  1824,  the  different 
parties  recognized  their  incapacity  of  making  nom- 
inations through  the  instrumentality  of  their  rep- 
resentatives in  Congress. 

There  gradually  arose,  oat  of  this  state  of  things, 
the  systems  of  conventions  now  in  force,  and  since 


IlSr  THE  UNITED  STATES.  29 

1831  the  J  have  acted  without  interruption.  ^  The 
Americans  were,  in  this  manner,  led  to  create  them. 

A  poHtical  party  can  scarcely  exist  in  the  United 
States  without  having  adherents  in  almost  all  the 
States.  It  is,  then,  necessary  to  have  a  general 
organization  which  may  apply  to  the  whole  nation, 
and  a  local  organization  in  each  State,  county  and 
township. 

The  Americans  have  succeeded  in  giving  regular 
action  to  this  complicated  political  machinery  by 
exercising  the  right  of  peacefully  assembling  and 
forming  associations  for  the  maintenance  of  their 
political  rights  and  opinions.  The  principle  of 
free  unions  is  guaranteed  by  the  common  law, 
and  the  use  made  of  it  by  the  Anglo-Saxons  is  so 
general  that  no  one  thinks  of  restricting  it.  When 
a  party,  then,  is  about  to  be  formed,  the  persons 
who  advocate  the  principles  which  are  to  be  sup- 
ported by  it  publish  their  programme  ;  at  the  same 
time  they  invite  all  those  who  share  their  ideas  to 
assemble  in  their  respective  districts  and  elect 
representatives  to  a  convention,  by  which  the 
contemplated  party  will  be  organized. 

If  the  public  respond,  delegates  will  be  chosen 
in  each  State,  or  at  least  in  a  certain  number  of 
States.  They  in  their  turn  will  unite  and  form  a 
convention.     This  assembly  then  is  constituted  in 

1  Essays  on  Political  Organization,  published  by  the  Union 
League  of  Philadelphia,  pp.  64,  65. 


30  THE  EXECUTIVE  POWER 

conformity  with  customs  that  are  almost  invariable. 
The  credentials  of*  the  members  are  first  verified 
by  a  committee  appointed  ad  hoc.  The  convention 
declares,  in  a  certain  number  of  resolutions^  its  politi- 
cal principles,  and  sometimes  also  adopts  an  address 
to  the  people.  If  the  party  considers  itself  strong 
enough,  or  judges  it  to  be  opportune,  candidates 
are  nominated,  who  are  to  be  its  standard-bearers, 
and  whose  nan:ies  are  to  be  subsequently  submitted 
for  popular  suffrage.  Finally,  the  convention  con- 
stitutes a  permanent  organization  or  central  com- 
mittee, clothed  with  the  power  to  convoke,  when 
it  is  deemed  expedient,  a  new  assembly,  similar  to 
the  one  just  held.  In  the  interval,  the  committee 
will  control  the  party  and  watch  over  its  interests. 
The  Eepublican  party  was  organized  in  this  manner 
in  1836.  Some  determined  abolitionists  of  New 
York  nominated  a  presidential  candidate,  and 
although  the  anti-slavery  movement  was  still  con- 
fined to  this  State,  they  voted  for  him.  At  the 
presidential  election  of  1840,  the  ^''National  Lib- 
erty Party''"'  was  organized,  and  cast  7,000  votes. 
At  the  election  of  1844  it  received  70,000.  In 
1848  its  candidate,  Mr.  Yan  Buren,  had  nearly 
250,000  votes.  This  organization  increased  at  each 
succeeding  election  until  1860,  when  its  candidate, 
Mr.  Lincoln,  was  successful. 

Let  us  now  suppose  a  case  where  a  party  is  so 
far  developed  as  to  be  on  the  point  of  becoming  a 


IN  THE  UNITED  STATES.  31 

great  national  party.  The  period  approaches  for  a 
presidential  election;  the  committee  of  arrange- 
ments convokes  a  convention  in  which  all  the 
States  are  to  be  represented ;  it  fixes  the  place  of 
meeting,  and  determines,  according  to  universally 
observed  rules,  the  number  of  delegates  that  each 
State  is  to  choose.  The  members  of  this  party 
then  publicly  assemble  in  their  respective  wards  or 
townships,  and  discuss  the  following  questions  : 

1.  What  presidential  candidate  shall  be  nomi- 
nated by  the  National  Convention  of  the  party  ? 
(In  technical  language  the  convention  nominates  a 
candidate,  and  the  people  elect  him.) 

2.  What  political  programme  shall  be  adopted? 
After   deciding   these   questions,  this   primary 

meeting  (ward,  township  or  county  meeting),  chooses 
a  certain  number  of  delegates,  instructs  them  to 
sustain  the  ideas  which  have  been  adopted,  and  to 
uphold  the  candidate  or  candidates  for  whom  it 
has  expressed  a  preference. 

Similar  proceedings  take  place,  almost  at  the 
same  time,  in  the  other  counties  which  form  the 
sub- divisions  of  the  State.  Then  the  citizens,  cho- 
sen in  this  manner  by  all  the  primary  assemblies, 
meet  in  their  turn.  They  resume  a  second  time  the 
discussion  of  ideas  which  have  been  already  debated  ; 
finally  they  appoint  delegates  to  represent  the  State 
in  the  National  Convention  of  the  party.  This  is 
composed  of  delegations  thus  selected  by  a  sort  of 


32 


THE  EXECUTIVE  POWER 


doable  election.  Once  united,  this  assembly  har- 
monizes, if  we  can  make  use  of  this  expression, 
all  its  discordant  elements,  chooses  a  candidate  for 
the  presidency  and  makes  known  to  the  country  its 
political  principles.  Then,  before  finally  adjourn- 
ing, it  forms  a  permanent  committee,  which  will 
retain  its  authority  until  the  meeting  of  the  next 
convention.  This  committee  consists  of  one  or  two 
delegates  taken  from  each  State  in  the  Union.  At 
the  time  of  the  appointment  of  delegates  to  the 
National  Convention,  or  at  a  subsequent  meeting 
of  each  State  Convention,  each  party  nominates 
presidential  electors,  for  whom  the  votes  of  the  peo- 
ple are  solicited,  inasmuch  as  those  who  are  elected 
will  be  called  upon  to  choose  officially  the  Presi- 
dent. ^ 

In  this  way  the  persons  who  nominate  a  presi- 
dential candidate,  and  the  electors  who  compose  the 
college,  and  cast  the  electoral  vote  of  the  State, 
represent  a  common  thought.  They  are  both  des- 
ignated in  a  manner  which  subjects  them  to  the 
control  of  the  same  men.  Party  pressure  is  brought 
to  bear  as  well  upon  the  members  of  the  National 
Convention  as  upon  the  presidential  electors.  Mean- 
while the  opposing  party  or  parties  have  acted  in 
the  same  manner.     After  all  the  nominations  have 

1  Sometimes  it  happens  that  the  State  Convention  nominates  only 
the  two  presidential  electors  who  represent  the  State  at  large  in 
the  electoral  college,  and  the  others  are  chosen  by  the  conventions 
held  in  the  congressional  districts. 


IN  THE  UNITED  STATES.  ^^ 

been  made,  and  the  programmes  formally  resolved 
upon,  the  electoral  campaign,  properly  speaking, 
commences. 

These  very  powerful  combinations  have  been  in 
turn  the  subject  of  enthusiastic  praise  and  of  severe 
criticism.  In  the  first  place,  it  cannot  be  denied 
that  they  have  sufficed  to  constitute  great  political 
parties,  given  them  peculiar  vigor,  and  enforced 
the  strictest  discipline.  On  the  other  hand,  it  has 
been  observed,  and  with  much  truth,  that  under 
this  regime  it  is  not  really  the  association  that  gov- 
erns, but  the  most  insignificant  minority  that  rules 
the  majority. 

"  Party .  organizations,  such  as  we  have  in  this 
country,  exist  in  no  other,  and  are  not  necessary  in 

a  well- organized  government The  principal 

evils  of  our  system  of  government  grow  out  of  these 
organizations,  nominating  conventions,  and  other 
party  machinery  devised  to  stimulate  party  spirit, 
to  secure  success  at  elections,  either  by  fair  or 
foul  means,  and  to  control  the  destinies  of  the 
country." 

"Party  organizations  and  machinery  consist  of 
national,  state,  county,  city,  ward  and  township 
committees,  and  committees  for  each  congressional 
district  for  each  political  party,  and  township,  ward 
and  city  meetings,  county,  state,  district  and  na- 
tional conventions  for  making  nominations,  discus- 
sing political  questions,  adopting  resolutions,  party 
3 


34  THE  EXECUTIVE  POWER 

creeds  and  platforms,  and  appointing  committees 
for  the  succeeding  year  or  term.  The  committees 
call  the  meetings  and  conventions,  provide  for 
holding  them,  procure  and  disseminate  documents, 
addresses,  political  tracts  and  other  information 
among  the  people;  procure -and  distribute  tickets 
at  the  polls,  and  do  various  other  things  to  obtain 
votes  and  carry  elections,  some  of  which  honest 
men  will  do,  and  some  of  which  they  will  not 
do." 

"The  primary  meetings  of  each  party  which 
nominate  township  and  ward  officers,  and  appoint 
delegates  to  city  and  county  conventions,-  are  gene- 
rally composed  of  from  ten  to  about  fifty  persons, 
who  are  mostly  politicians  and  aspirants  to  office, 
or  the  friends  of  aspirants,  and  seldom  comprise 
more  than  from  five  to  twenty  per  cent,  of  the 
voters  of  the  party  for  which  they  assume  to  act 

all  depending  upon  the  action  of  the  little 

handful  of  party  politicians  attending  the  primary 
meetings,  and  upon  the  delegates  to  county  conven- 
tions appointed  by  them,  the  most  of  the  voters 
having  no  voice  in  selecting  the  candidates  or 
adopting  the  creed  of  either  party." 

"  The  primary  meetings  are  attended  by  so  few 
persons,  that  it  is  generally  easy  for  two  or  three 
leaders  to  rally  their  friends  and  secure  the  appoint- 
ment of  such  delegates  as  they  wish ;  and  conven- 
tions are  easily  packed  to  procure  the  nomination 


IN  THE  UNITED  STATES.  35 

• 

of  men  who  could  not  be  nominated  by  the  voice 
of  the  party  fairly  represented." 

" This  is  often  accomplished  by  the  expen- 
diture of   considerable   sums   of  money,  and   the 

profuse   use  of  promises." "Conventions 

come  together  simply  to  record  the  decisions  of  the 
leaders  when  they  are  united,  and  to  determine  by 
vote  which  faction  or  section  is  the  strongest,  when 
they  are  divided." 

"Party  leaders,  deeply  imbued  with  ambition 
and  party  spirit,  desire  an  organization,  frequent 
meetings  and  addresses,  a  party  creed  and  a  politi- 
cal faith,  and  also  the  establishment  of  some  political 
dogmas,  to  distinguish  them  from  other  political 
parties,  and  to  unite  their  friends  and  followers  and 
stimulate  their  zeal.  By  such  means  they  can 
determine  what  should  be  recognized  as  political 
orthodoxy,  and  are  enabled  to  restrain  freedom  of 
opinion  and  individual  liberty  from  endangering 
the  unity  of  the  party ;  and  they  can  also  maintain 
rigid  party  discipline,  and  confine  the  patronage  of 
the  party  to  the  most  zealous  and  active  of  the 
faithful;  one  of  the  main  objects  of  the  party 
leaders  being  to  secure  party  zeal  and  fidelity,  and 
activity  and  capacity  to  promote  the  success  of  the 
party,  rather  than  the  best  interests  of  the  country. 
A  still  further  object  is  to  form  public  opin- 
ion, and  to  educate  and  mould  the  public  mind  in 


36  THE  EXECUTIVE  POWER 

accordance  with  the  creed  and  dogmas  of  the  paTtj, 
in  order  to  secure  permanent  success  and  party  dom- 
ination." ^ 

The  evils  which  have  just  been  indicated  are 
not  the  only  ones.  These  assemblies  are  in  general 
very  numerously  attended.  Among  those  who  com- 
pose them  are  found  a  great  many  inexperienced 
men,  and  a  sufficient  number  of  politicians  to  con- 
duct the  deliberations  ;  they  hold  very  few  sessions. 
The  delegates  who  attend  are  not  in  a  situation  to 
consult,  to  understand,  or  often  even  to  know  each 
other.  It  is  not  then  to  be  wondered  at  that  a 
handful  of  adroit  managers  do  all  the  work,  and 
vthat  the  convention  generally  does  nothing  more 
than  give  expression  to  their  will.  Such  an  assem- 
bly rarely  accomplishes  exactly  what  it  wishes. 
Doubtless  examples  may  be  cited,  tending  to  prove 
that  the  principle  of  association,  thas  applied,  may 
be  productive  of  good  results ;  but,  on  the  other 
hand,  an  intelligent  and  unprejudiced  reader  of  the 
history  of  national  conventions  will  not  fail  to  per- 
ceive and  appreciate  all  the  faults  and  defects  of 
the  system. 

For  some  time  past  the  most  sagacious  observers 
have  regarded  these  organizations  as  dangerous  to 
the  United  States.     In   his  great   work,  written 

1  The  American  Sj'^stem  of  Government,  by  Ezra  Seaman,  pp.  62 
and  succeeding. 


IN  THE  UNITED  STATES.  37 

several  years  before  the  breaking  out  of  the  civil 
war,  Mr.  Benton  said  :  ^ 

"  I  have  seen  the  capacity  of  the  people  for  self- 
government  tried  at  many  points,  and  always  found 
it  equal  to  the  demands  of  the  occasion.  Two  other 
trials,  now  going  on,  remain  to  be  decided  to  settle 
the  question  of  that  capacity  :  1st.  The  election  of 
President,  and  whether  that  election  is  to  be  gov- 
erned by  the  virtue  and  intelligence  of  the  people, 
or  to  become  the  spoil  of  intrigue  and  corruption  ? 

An  irresponsible  body,"  continues  the  author, 

"  chiefly  self-constituted,  and  mainly  dominated  by 
professional  office-seekers  and  office-holders,  have 
usurped  the  election  of  President  (for  the  nomina- 
tion is  the  election,  so  far  as  the  party  is  concerned), 
and  always  making  it  with  a  view  to  their  own 
profit  in  the  monopoly  of  office  and  plunder." 

The  second  danger  pointed  out  by  Mr.  Benton, 
and  which  it  is  not  necessary  to  investigate  here, 
was  the  question  of  slavery.^ 

It  results  from  the  experience  of  the  past  forty 
years  in  particular,  that  the  organization  of  parties 
identifies  the  President  with  that  one  which  has 
elected  him.     He  becomes,  by  the  very  fact  of  his 

1  Mr.  Thomas  H.  Benton  was  for  thirty  years  a  United  States 
Senator.  He  has  related  in  two  large  volumes  the  events  which 
he  witnessed.  This  great  work,  entitled  "  Thirty  Years'  View,"  is 
very  useful  to  consult,  although  Mr.  Benton  has  too  often  recorded 
in  his  writings  the  passionate  impressions  which  he  received  in 
the  struggles  of  the  day. 

2  See  Thirty  Years'  View,  Vol.  II.,  p.  787. 


38  THE  EXECUTIVE  POWER 

nomination  by  a  convention,  the  official  representa- 
tive, if  not  the  chief,  of  this  party.  By  it  he  obtains 
power.  By  it  he  will  be  supported  and  will  gov- 
ern. It  is  scarcely  possible  for  him  to  disconnect 
himself  from  it,  and  up  to  the  present  time  every 
President  attempting  it  has  failed.  Almost  always 
designated  by  politicians^  and  presented  by  them 
for  the  popular  vote,  he  is,  even  before  the  election, 
united  to  them  by  the  strongest  ties,  and  when  he 
enters  on  the  discharge  of  his  functions,  woe  betide 
him  if  he  forget  those  to  whom  he  owes  nearly  all 
his  success. 

If  there  be  a  man  who,  of  late  years,  has  been  called 
by  public  sentiment  to  the  chief  magistracy  of  the 
United  States,  that  man  is  assuredly  General  Grant. 
The  Eepublican  party,  without  doubt,  adopted  him 
in  1868,  but  this  choice  was  in  reality  enjoined 
upon  it  by  public  opinion;  so  that  for  once  the  can- 
didate gained  the  presidential  mansion  free  from 
entangling  engagements.  He  seemed  at  first  resolved 
to  take  advantage  of  this  propitious  circumstance, 
and  to  maintain,  at  least  as  far  as  was  practicable, 
his  independence.  His  first  acts  clearly  denoted 
this  intention,  but  unhappily  he  soon  reached  the 
conclusion  that  he  must  renounce  the  attempt.  He 
became  impressed  with  the  conviction  that  he  could 
not  dispense  with  the  support  of  the  politicians,  and 
he  was  obliged  to  come  to  an  understanding  with 
them. 


IN  THE  UNITED  STATES.  39 

If  the  close  relations  which  exist  between  the 
President  and  the  chiefs  of  his  party  often  give 
much  vigor  to  his  administration ;  if  in  this  way 
he  avoids  many  conflicts  with  Congress,  and  se- 
cures the  undivided  support  of  a  powerful  organi- 
zation, spread  throughout  the  entire  country,  he 
on  the  other  hand  incurs  heavy  obligations,  and 
must  reward  services  which  have  been  rendered 
him.  Hence  his  dependence ;  hence  also  his  weak- 
ness. How  many  compromises  is  he  not  required 
to  make,  how  many  interests  is  he  not  compelled 
to  satisfy  ! 

The  President  is  then  plac^  in  a  situation  wherein 
the  political  organization  which  put  him  in  power 
actively  supports  him,  provided,  that  it  receives 
in  exchange  all  the  gratifications  and  rewards  to 
which  it  considers  itself  entitled.  In  order  to 
govern  the  country,  he  must  make  habitual  conces- 
sions to  his  party,  which  acts,  so  to  say,  as  his 
executive  agents ;  if  he  withdraws  from  it,  his 
power  will  immediately  diminish,  and  he  will,  ere 
long,  become  the  victim  of  those  with  whom  he 
fails  to  act  in  concert. 

The  administrative  disorder  which  reigns  in  the 
United  States  aggravates  this  condition  of  things ; 
almost  all  public  offices  are  considered  as  belong- 
ing to  the  victorious  party;  "to  the  victors,"  says 
the  American  maxim,  "  belong  the  spoils."  There- 
fore, at  the  beginning  of  an  administration,  those 


40  THE  EXECUTIVE  POWER 

who  liave  contributed  to  assure  the  success  of  the 
electoral  campaign,  consider  themselves  entitled  to 
demand  a  division  of  the  offices  as  an  undoubted 
right.  The  President  has  to  meet  innumerable 
demands,  and  as  he  cannot  overlook  active  party 
services,  the  most  annoying  difficulties  are  thereby 
entailed  upon  him,  and  they  will  increase  with  the 
growing  population  and  resources  of  the  country. 
The  creation  of  public  offices,  rendered  necessary 
by  the  late  civil  war,  greatly  enlarged  the  patron- 
age of  the  government,  and  added,  in  a  correspond- 
ing degree,  to  the  embarrassments  of  him  who  dis- 
penses it. 

For  some  time  past  statesmen  and  publicists  have 
sought  the  means  of  putting  an  end  to  this  state  of 
things.  They  have  thought  that  if  they  succeeded 
in  rendering  national  conventions  useless,  they 
could  break  up  the  machinery  of  that  political 
organization  which  incites  and  regulates  party 
movements,  even  in  the  counties  and  townships. 
With  this  view,  the  suppression  of  the  electoral 
colleges  has  been  proposed. 

They  could,  without  difficulty,  prove  that  this 
institution,  to  which,  in  theory,  appertains  the  right 
of  choosing  the  President,  has  in  practice  no  real 
power  whatever ;  that,  acting  always  in  obedience 
to  special  and  imperative  instructions,  it  is  conse- 
quently useless.  In  1824  a  Senator  said  that  the 
objections  against  a  direct  election  by  the  people, 


IN  THE  UNITED  STATES.  41 

which  prevailed  with  the  members  of  the  conven- 
tion of  1787,  had  already  nearly  lost  their  impor- 
tance. An  attempt  was  made  at  the  session  of 
1825-26  to  procure  an  amendment  to  the  Consti- 
tution. A  committee  composed  of  nine  members 
was  appointed  by  the  Senate,  which  agreed  upon 
a  proposition  of  amendment.  The  prominent  fea- 
tures of  this  plan  of  election  are,  1 .  The  abolition 
of  electors  and  the  direct  vote  of  the  people ;  2.  A 
second  election  between  the  two  highest  on  each 
Hst,  when  no  one  has  a  majority  of  the  whole;  3. 
Uniformity  in  the  mode  of  election. 

The  advantages  of  this  plan  would  be  to  get  rid 
of  all  the  machinery  by  which  the  selection  of  their 
two  first  magistrates  is  now  taken  out  of  the  hands 
of  the  people.  If  any  one  received  a  majority 
of  the  whole  number  of  districts  in  the  first  elec- 
tion, then  the  democratic  principle,  the  majority  to 
govern,  is  satisfied.  If  no  one  receives  such  a  ma- 
jority, then  the  first  election  stands  for  a  popular 
nomination  of  the  two  highest — a  nomination  by 
the  people  themselves.  But  to  provide  for  a  pos- 
sible contigency — too  improbable  ever  to  occur 
— and  to  save,  in  that  case,  the  trouble  of  a  third 
popular  election,  a  resort  to  the  House  of  Kepre- 
sentatives  is  allowed,  it  being  nationally  unimpor- 
tant which  is  elected  where  the  candidates  were 
exactly  equal  in  the  public  estimation.  The  plan 
was  unanimously  recommended  by  the  committee. 


42  THE  EXECUTIVE  POWER 

But  it  did  not  receive  the  requisite  support  of 
two-thirds  of  the  Senate  to  carry  it  through  that 
body.^ 

The  8th  of  December,  1829,  General  Jackson 
recommended  to  Congress  the  adoption  of  a  similar 
measure:  "To  the  people,"  said  the  message,  "be- 
longs the  right  of  electing  their  chief  magistrate ; 
it  was  never  designed  that  their  choice  should,  in 
any  case,  be  defeated,  either  by  the  intervention  of 
electoral  colleges,  or  by  the  agency  confided,  under 
certain  contingencies,  to  the  House  of  Eepresenta- 
tives "2 

In  1844  the  question  again  came  up,  but  it  does 
not  appear  at  that  time  to  have  occupied  the  atten- 
tion of  Congress  as  it  had  done  twenty  years  before. 
Since  then  it  has  often  been  agitated,  without  ever 
having  been  made  the  subject  of  earnest  investiga- 
tion. In  the  course  of  the  session  of  1871-72, 
Mr.  Sumner  reproduced  it,  in  the  following  terms: 

"Whereas,  According  to  the  existing  system, 
the  President  of  the  United  States,  instead  of  being 
chosen  directly  by  the  people,  is  chosen  by  the  in- 
tervention of  electoral  colleges  in  the  several  States; 
and 

"Whereas,  This  system,  besides  excluding  the 
'people  from  a  direct  vote  in   the  choice  of  President^ 

1  Thirty  Years'  View,  pp.  78-79. 

2  See  "  The  Addresses  and  Messages  of  the  Presidents  of  the 
United  States."    New  York,  1842.    P.  359. 


IN  THE  UNITED  STATES.  43 

is  operated  hy  the  caucus  or  convention^  an  irrespon- 
sible hody^  unknown  to  the  law  or  Constitution^  where 
a  few  persons  hy  combination^  and  sometimes  by  in- 
trigue or  corruption  J  succeed  in  putting  forward  a 
candidate  who  becomes  forthwith  the  exclusive  repre- 
sentative of  a  political  party,  so  that  the  triumph  of 
the  party  assures  his  election;  and 

".Whekeas,  The  caucus  or  convention^  after  being 
the  engine  for  the  nomination  of  President^  allowing 
the  people  a  little  more  than  to  record  its  will,  becomes 
the  personal  instrument  of  the  President  when  elected, 
giving  him  a  dictatorial  power,  which  he  may  employ 
in  reducing  the  people  to  conformity  with  his  purposes 
and  promoting  his  re-election,  all  of  which,  is  hostile 
to  good  government,  and  of  evil  example  ;  and 

"Whereas,  The  existing  system  of  choosing  a 
President,  besides  being  highly  artificial  and  cumber- 
some, is  radically  defective  and  unrepublican,  inas- 
much as  it  fails  to  secure  for  each  voter  the  oppor- 
tunity of  declaring  for  the  candidate  of  his  choice, 
and  in  its  operation  substitutes  therefor  the  dicta- 
tion of  a  caucus  or  convention." 

Such  are  the  reasons  assigned  by  Mr.  Sumner 
in  the  preamble  to  the  resolutions  which  he  offered 
looking  to  the  abolition  of  the  system  now  in  force. 
They  recapitulate  very  clearly  the  objections  to 
which  it  has  given  rise. 

It  is  impossible  to  say  whether  the  United 
States  will  soon  adopt  any  project  of  electoral  re- 


44  THE  EXECUTIVE  POWER 

form.  It  is,  however,  probable  that  the  existing 
system  has  not  jet  outlived  its  time.  Its  inherent 
faults  must  first  be  more  generally  known. 

Such  are  the  varied  experiences  of  the  United 
States  regarding  the  presidential  election.  The 
convention  of  1787  was  right  in  withholding  from 
the  House  of  Representatives  the  right  to  elect  the 
President.  Had  it  done  otherwise,  one  of  two  things 
would  have  happened — either  the  House  would 
have  received  imperative  instructions  from  its  con- 
stituents— it  would  itself  have  been  elected,  in  view 
of  the  presidential  choice  to  be  made  by  it,  or  it 
would  have  become  a  central  point  of  intrigues. 
Party  spirit  would  have  distracted  it,  and  each  can- 
.didate  would  have  employed  every  means  at  his  dis- 
posal to  secure  votes.  Nev^r  would  an  election 
have  been  less  free  and  unbiased. 

The  system  adopted  by  the  Philadelphia  Con- 
vention, which,  with  the  amendment  of  1803,  has 
been  maintained  to  the  present  day,  has  encouraged 
the  organization  of  parties.  At  the  same  time,  as 
has  been  seen,  the  electoral  colleges  have  lost  even 
the  right  of  expressing  a  personal  preference. 
They  have  been  reduced  to  simply  registering  the 
popular  verdict.  In  this,  then,  the  election,  through 
a  second  agency,  has  completely  failed. 
■  The  direct  election  of  the  chief  magistrate  by 
the  people  remains  to  be  tried.  It  is  impossible  to 
foresee  the  practical  result  of  this  experiment. 


IN  THE  UNITED  STATES. 


45 


The  choice  of  a  President  determines  for  four 
years  the  general  policy  of  the  United  States.  The 
convention  that  designates  the  candidate  whose 
nomination  is  subsequently  ratified  by  the  people, 
has  marked  out  a  programme.  This  programme 
has  been  explained  by  all  the  "  stump-speakers  "  of 
the  party,  and  adopted  by  the  innumerable  local 
conventions  held  about  the  same  time.  The  party 
has  in  this  way  expressed  its  ideas  upon  the  situa- 
tion ;  the  candidate  for  the  presidency  has  formally 
given  in  his  adhesion,  and  his  honor,  as  a  public 
man,  is  pledged  to  its  execution. 

Once  elected,  the  President  knows  then  the  policy 
he  is  to  pursue.  If  no  exceptional  or  disturbing 
causes  occur  to  distract  the  public  mind,  it  is  easy 
to  tell  from  the  day  that  he  enters  upon  his  duties 
what  will  be  his  line  of  conduct.  But  at  a  critical 
juncture  matters  do  not  take  place  in  the  same 
manner;  if  new  political  questions  arise,  a  pro- 
gramme previously  decided  on  cannot  have  foreseen 
them.  Then  it  becomes  his  duty  to  discern  the 
direction  of  that  public  opinion,  which  alone  has 
supreme  authority  to  sit  in  judgment  on  his  action. 
Within  these  limits  he  has  full  scope  to  display 
all  the  qualities  of  a  statesman.  As  he  is  not 
politically  amenable  to  any  jurisdiction,  he  may  act 
with  entire  freedom,  provided  he  does  not  violate 
the  laws  with  a  criminal  intent.  Even  if  he 
deem  it  best  either  to  offer  a  momentary  resistance 


46  THE  EXECUTIVE  POWER 

to  public  opinion,  or  to  anticipate  it,  he  is  at  liberty 
to  do  so.  However,  he  should  never  lose  sight  of 
the  party  chiefs,  who  have  borne  him  into  power  ; 
he  must  at  all  hazards  avoid  an  estrangement  from 
them. 

Notwithstanding  these  conditions  of  political  de- 
,  pendence  on  a  party,  and  an  ultimate  responsibility 
to  the  people,  pubhc  opinion  allows  the  greatest 
liberty  of  action  to  the  President.  He  is  in  a  posi- 
tion to  act  with  vigor,  and  up  to  a  certain  point  his 
movements  may  be  independent.  It  cannot  be 
doubted  that  this  authority  is  indispensable  to  the 
development  of  the  United  States,  as  well  as  to  the 
maintenance  of  liberty. 

The  election  of  the  Vice-president  of  the  repub- 
lic requires  some  special  remarks.  By  the  terms 
of  the  Constitution  he  performs,  for  the  greater 
part  of  the  time,  unimportant  functions.  He  pre- 
sides over  the  deliberations  of  the  Senate,  but  can- 
not take  part  in  them,  nor  has  he  a  vote,  except  in 
rare  instances,  in  which  the  members  are  equally 
divided.  However,  under  certain  circumstances 
he  may  be  called  to  the  presidency.  "  In  case  of 
the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  Vice-president."  This  clause  of 
the  fundamental  law^  has  already  taken  effect  three 

I  Constitution,  Article  IL,  Section  1,  ^  5. 


IN  THE  UNITED  STATES.  47 

times  in  the  history  of  the  United  States.  At  the 
death  of  General  Harrison,  Mr.  Tyler  succeeded 
him  ;  Mr.  Fillmore  became  President  at  the  death  of 
Greneral  Taylor,  and  finally,  when  Mr.  Lincoln  was 
assassinated,  Mr.  Johnson  took  his  place. 

Perplexing  questions  relative  to  the  then  Con- 
stitutional status  of -the  Yice-president  have  arisen. 
Some  assert  that  he  administers  the  Executive 
Power,  being  simply  charged  with  its  functions ; 
others,  on  the  contrary,  maintain  that,  by  the  very 
•  fact  of  a  change  of  persons,  he  becomes  in  deed  and 
of  right  President  of  the  United  States.  This  dif- 
ference of  opinion  is  not  unimportant;  however, 
as  the  question  is  yet  in  abeyance,  there  is  no 
reason  for  dwelling  upon  it  now.  On  the  contrary, 
it  is  useful  to  consider  all  the  bearings  of  the  ar- 
rangement which  may  eventually  place  him  in 
the  executive  chair. 

On  the  three  occasions  m  which  the  Yice-presi- 
dent succeeded  the  President,  disagreements  more 
or  less  serious  existed  between  the  executive  and 
the  legislative  power. 

The  administration  of  Mr.  Tyler  was  very 
troubled,  and  although  Mr.  Fillmore  did  not  en- 
counter so  violent  an  opposition,  yet  he  met  with 
very  serious  embarrassments;  while  under  Mr. 
Johnson  matters  proceeded  to  the  utmost  extremity. 
The  experience  of  the  United  States  on  this  subject 
is,  then,  very  far  from  giving  satisfactory   results. 


48  THE  EXECUTIVE  POWER 

It  is  not,  moreover,  difficult  to  see  why  this  ar- 
rangement did  not  succeed.  In  the  first  place,  the 
Vice-president  and  President  are  nominated  by 
the  same  convention.  The  important  man  has 
been  chosen  for  the  first  office  ;  but  almost  always 
there  will  be  found,  in  assemblies  thus  constituted, 
a  minority  who  are  not  wholly  pleased  with  the 
nomination.  These  discontented  persons  must  be 
satisfied — and  the  second  place  'is  given  to  the 
candidate  selected  by  them. 

It  frequently  occurs  that  the  Yice-president  does 
not  exactly  represent  the  ideas  or  interests  which 
dictated  the  first  choice.  Doubtless,  the  system 
in  use  offers  advantages  in  regard  to  the  election. 
As  the  two  candidates  have  many  points  of  dif- 
ference, they  supplement  and  at  times  strengthen 
each  other.  But  that  which  may  be  useful  during 
the  canvass  may  eventually  become  a  cause  of  very 
serious  embarrassment.  In  case  the  Vice-president 
is  suddenly  called  upon  to  exercise  the  office  of 
chief  magistrate,  it  is  easy  to  foresee  the  con- 
sequences growing  out  of  this  change  of  persons. 
Although  he  has  been  elected  by  a  majority  of 
the  people,  yet  he  does  not  the  less  for  all  that 
represent,  in  many  respects,  the  views  of  a  certain 
minority.  If  he  remain  faithful  to  them,  he  may 
find  himself  in  open  opposition  to  his  own  party. 
Besides,  from  the  moment  when  the  people  elect  a 
President  this  candidate  alone  is  before  the  public 


IN  THE  UNITED  STATES.  49 

eye,  and  it  is  to  him  that  the  authority  is  delegated 
by  the  vote  of  the  country.  So,  in  this  case,  the 
question  is  not  simply  to  ascertain  the  degree  of 
opposition  that  one  man  is  able  to  make  to  the 
collective  power  of  Congress. 

"If  the  President  is  strong,  it  is  because  the  peo- 
ple who,  by  their  suffrage,  have  raised  him  to 
his  place,  are  behind  him,  holding  up  his  hands, 
speaking  with  his  voice,  sustaining  him  in  his  high 
duties,  that  the  President  has  the  place  and  can 

maintain  it  under  the  Constitution So  this 

great  power  does  not  present  any  danger  to  the 
country,  and  the  President  may  exercise  it  safely, 
because  he  is  supported  by  the  people  who  have 
just  given  him  so  striking  a  proof  of  their  confi- 
dence in  calling  him  to  the  chief  magistracy."^  If, 
on  the  contrary,  he  who  fills  the  executive  func- 
tions has  not  been  chosen  by  a  popular  election 
made  with  the  view  of  confiding  this  power  to  him 

directly "then  at  once  discord,  dislocation, 

deficiency,  difficulty  show  themselves;  then  at  once 
the  great  powers  of  the  office,  which  were  conso- 
nant with  a  free  constitution  and  with  the  supre- 
macy of  popular  will,  by  the  fact  that  for  a  brief 
term  the  breath  of  life  of  the  continuing  favor  of 
the  people  gave  them  efficiency  and  strength,  find 
no  support  in  fact.     Then  it  is,  that  in  the  eriti- 

ilmpoacbment  Trial  of  Andrew  Johnson,  pp.  721,  722;  argu- 
ment of  Hon.  William  M.  Evarts. 


50 


THE  EXECUTIVE  POWER 


cisms  of  the  press,  in  the  estimate  of  public  men, 
in  the  views  of  the  people,  these  great  powers, 
strictly  in  trust  and  within  the  Constitution,  seem 
to  be  despotic  and  personal."  ^ 

Finally,  all  the  aspirants,  all  those  who  are  in- 
terested in  the  public  service,  or  who  established 
relations  with  the  late  President,  find  themselves 
in  an  awkward  position  as  regards  his  succes- 
sor. If  then  a  Vice-president,  who  is  suddenly 
called  upon  to  occupy  so  different  a  situation,  fails 
to  show  the  requisite  wisdom  and  prudence,  if  he 
does  not  possess  the  personal  qualities  necessary 
to  maintain  peace,  contests  must  inevitably  ensue, 
and  then  the  executive  falls  into  an  exceptional 
state  of  weakness. 

Thus  the  constitutional  provision,  in  virtue  of 
which  the  Yice-president  may  eventually  take  the 
place  of  the  President,  has  caused  the  United  States, 
up  to  the  present  time,  inconveniences  of  the 
gravest  nature ;  and,  although  this  question  has 
not  as  yet  attracted  public  attention  to  the  extent 
that  it  deserves,  it  is  possible  -that  sooner  or  later 
it  may  become  the  subject  of  thorough  discussion. 
However  that  may  be,  this  provision  ought  not  to 
be  imitated  elsewhere.  If  a  nation  should  adopt 
"  the  republican  form  of  government,"  it  would  be 
more  to  its  advantage  to  declare  that  if  the  Presi- 

1  Impeachment  Trial  of  Andrew  Johnson^  pp.  721,  722;  argument 
of  Hon.  William  M.  Evarts. 


IN  THE  UNITED  STATES.  51 

dent  elect  ceases,  from  any  reason  whatever,  to 
exercise  his  functions,  the  presiding  officer  of  one 
of  the  legislative  chambers  should  temporarily 
serve,  and  be  required  to  order  the  election  of  a 
successor  with  the  least  possible  delay. 


CHAPTER  11. 

CONSTITUTION   OF   THE   EXECUTIVE  POWER. 

WE  mu^t  not  for  a  moment  lose  siglit  of  the 
fact  that  the  people  have  not  delegated  all 
their  powers  to  the  Federal  Government. 
The  latter  is  only  sovereign  within  a  restricted 
sphere  of  action  prescribed  by  the  Constitution.  It 
is,  then,  impossible  to  compare  it  with  the  govern- 
ments of  other  States.  In  England,  Prussia,  Rus- 
sa  and  France,  the  central  power,  whatever  it  may 
be,  represents  the  whole  national  sovereignty,  while 
in  the  United  States  the  Federal  Government  only 
represents  a  part  of  it,  and  is  confined  to  the  ex- 
ercise of  the  powers  enumerated  by  the  funda- 
mental law. 

There  is  no  necessity  for  presenting  here  the  con- 
siderations which  induced  the  Philadelphia  Conven- 
tion to  adopt  this  system;  but  it  is  important  to 
remark  that  it  would  be  almost  impossible  for  other 
nations  to  make  a  similar  division  of  powers.  In- 
deed, a  country  must  be  placed  in  peculiar  circum- 
stances to  prevent  an  absorption  of  all  authority 
by  the  general  government. 

We  will  now  look  into  the  Constitution  of  the 
(52) 


IN  THE  UNITED  STATES.  53 

Unit(,d  States,  and  see  in'  what  manner  it  divides 
between  several  departments  tlie  sovereign  preroga- 
tives conferred  upon  the  Federal  Government.  It 
creates  an  executive,  a  legislative  and  a  judicial 
department,  and  provides  that  they  shall  be  all 
three  "  co-ordinate  and  independent"  ;  or,  to  use  the 
words  of  a  decision  of  the  Supreme  Court,  the 
several  branches  of  the  government  "  are  co-ordi- 
nate in  degree  to  the  extent  of  the  powers  delegated 
to  each  of  them.  Each,  in  the  exercise  of  its  pow- 
ers, is  independent  of  the  other,  but  all,  rightfully 
done  by  either,  is  binding  upon  the  others."  ^ 

It  was  thus  the  purpose  of  the  convention  to 
unite  the  three  powers  in  such  manner  that  each 
of  them  might  exert  a  constitutional  control  with- 
in its  own  orbit,  and  at  the  same  time  that  neither 
should  have  a  marked  ascendency  over  the  others. 
It  neglected  nothing  in  order  to  avoid  an  absorp- 
tion, or  even  a  gradual  concentration,  of  all  powers 
in  one,  and  labored  to  assure  the  independence  of 
each.  To  this  end  it  declared,  in  effect,  that  the 
President,  or  a  civil  officer,  should  not  be  impeached 
except  for  high  crimes  and  misdemeanors,  and  that 
no  executive  agents  should  be  held  politically  re- 
sponsible to  Congress.  On  the  other  hand,  the 
President  could  never  dissolve  the  Congress,  or 
even  suspend  the  course  of  its  deliberations. 

At  the  same  time  the  convention  calculated  that 

1 18  Howard.    Dodge  v».  Woolsey,  p.  347. 


54 


THE  EXECUTIVE  POWER 


personal  motives  would' plaj  an  important  part, 
and  that  the  men  who  would  form  one  of  the  three  ' 
powers  would  be  naturally  called  upon  to  defend  its 
privileges  and  maintain  its  prerogatives.  Thas,  after 
having  explained  how  human  ambition  would  con- 
tribute to  preserve  each  branch  of  the  government  in 
its  constitutional  rights,  the  "Federalist"  observed 
that,  in  order  to  avoid  a  predominance  of  legislative 
authority,  it  was  necessary  to  divide  the  Legisla- 
ture into  two  branches,  as  distinct  as  possible.  But 
this  did  not  appear  to  be  sufficient ;  the  Executive 
Po.wer  must  still  be  strengthened,  and,  neverthe- 
less, all  these  precautions  would  not  have  reassured 
the  authors  of  the  "Federalist," if  they  had  not 
found  a  new  guaranty  in  the  very  division  of  the 
sovereignty  between  the  Federal  government  and 
the  State  governments.  It  was  well,  in  their  opin- 
ion, that  power  should  be  divided  at  first  between 
two  distinct  governments,  and  then  be  distributed 
among  the  several  departments  of  each.  Hence 
this  partial  delegation  of  sovereignty.  Hence  these 
three  powers,  at  once  co-ordinate  and  independent, 
which  derive  their  authority  from  the  Constitu- 
tion, and  which,  while  they  act  in  concert,  yet 
serve  to   counterpoise  each  other. 

This  leads  us  to  explain  how  the  Executive 
Power  was  organized,  in  order  to  assure  its  co- 
operation with  the  two  other  departments,  and  at 
the  same  time  to  guaranty  its  independence.     The 


IN  THE  UNITED  STATES.  55 

first  care  of  the  convention  was  to  give  to  the 
President  as  much  strength  as  possible.^ 

"  There  is  an  idea,"  says  the  "Federalist,"  "  which 
is  not  without  its  advocates,  that  a  vigorous  execu- 
tive is  inconsistent  with  the  genius  of  republican 
government.  The  enlightened  well-.wishers  to  this 
species  of  government  must  at  least  hope  that  the 
supposition  is  destitute  of  foundation,  since  the\^ 
can  never  admit  its  truth  without,  at  the  same 
time,  admitting  the  condemnation  of  their  own 
principles.  Energy  in  the  executive  is  a  leading 
character  in  the  definition  of  good  government.  It 
is  essential  to  the  protection  of  the  community 
against  foreign  attacks ;  it  is  not  less  essential  to 
the  steady  administration  of  the  laws,  to  the  pro- 
tection of  property  against  those  irregular  and 
high-handed  combinations  which  sometimes  inter- 
rupt the  ordinary  course  of  justice,  to  the  security 
of  liberty  against  the  enterprises  and  assaults  of 

ambition,  of  faction,  and  anarchy" "A  feeble 

executive  implies  a  feeble  execution  of  the  govern- 
ment. A  feeble  execution  is  but  another  phrase  for 
a  bad  execution,  and  a  government  badly  executed, 
whatever  it  may  be  in  theory,  must  te,  in  practice, 
a  bad  government." 

It  remains  to  be  seen  what  are  the  essential  ele- 
ments of  that  energy  which  is  necessary  to  the 
Executive  Power.     According  to  the  "Federalist" 

1  See  the  "  Federalist,"  pp.  333-3<)4. 


56  .  THE  EXECUTIVE  POWER 

they  are,  first,  unity ;  secondly,  duration ;  thirdly, 
an  adequate  provision  for  its  support,  and  fourthly,- 
competent  powers. 

"  Those  politicians  and  statesmen,"  adds  the 
"Federalist,"  "who  have  been  the  most  celebrated 
for  the  soundness  of  their  principles,  and  for  the 
justness  of  their  views,  have  declared  in  favor  of  a 
single  Executive  and  a  numerous  Legislature.  They 
have,  with  great  propriety,  considered  energy  as 
the  most  necessary  qualification  of  the  former,  and 
have  regarded  this  as  most  applicable  to  power  in 
a  single  hand,  while  they  have,  with  equal  pro- 
priety, considered  the  latter  as  best  adapted  to 
deliberation  and  wisdom,  and  best  calculated  to  con- 
ciliate the  confidence  of  the  people,  and  to  secure 
their  privileges  and  interests " 

"  That  unity  is  conducive  to  energy  will  not  be 
disputed.  Decision,  activity,  secrecy  and  dispatch 
will  generally  characterize  the  proceedings  of  one 
man  in  a  much  more  eminent  degree  than  the  pro- 
ceedings of  any  greater  number,  and  in  proportion 
as  the  number  is  increased,  these  qualities  will  be 
diminished." 

If  the  Executive  Power  was  confided  to  two  or 
three  persons  the  people  would  be  deprived  of  the 
strongest  guarantees  which  can  be  found  in  the  dele- 
gation of  power.  /Thanks  to  unity,  public  opinion 
is  able  to  scrutinize  the  President,  and  to  determine 
upon  whom  to  direct  its  censure;,  the  people  are 


IN  THE  UNITED  STATES.  57 

also  capable  of  determining  the  responsibility  wbich 
may  attach  to  their  mandatary,  and,  if  need  be, 
they  know  whom  to  punish.  "  But  in  a  republic, 
where  every   magistrate  'ought  to   be   personally 

responsible   for    his    behavior   in    office the 

propriety  of  a  council  not  only  ceases  to  apply  but 
turns  against  the  institution."^ 

"Duration  in  office  has  been  mentioned  as  the 
second  requisite  to  the  energy  of  the  executive 
authority.  This  has  relation  to  two  objects  :^{_to 
the  personal  firmness  of  the  executive  magistrate  in 
the  employment  of  his  constitutional  powers,  and  to 
the  stability  of  the  system  of  administration  which 
may  have  been  adopted  under  his  auspices.'  With 
regard  to  the  first,  it  must  be  evident  that  the 
longer  the  duration  in  office,  the  greater  will  be 
the  probability  of  obtaining  so  important  an  advan- 
tage. It  is  a  general  principle  of  human  nature 
that  a  man  will  be  interested  in  whatever  he  pos- 
sesses, in  proportion  to  the  firmness  or  precarious- 
ness  of  the  tenure  by  which  he  holds  it ;  will  be  less 
attached  to  what  he  holds  by  a  momentary  or  un- 
certain title This  remark  is  not  less  applica- 
ble to  a  political  privilege,  or  honor,  or  trust,  than 
to  any  ordinary  article  of  property.  The  inference 
from  it  is,  that  a  man  acting  in  the  capacity  of 
chief  magistrate,  under  a  consciousness  that  in  a 
very  short  time  he  must  lay  down  his  office,  will  be 

I  The  "Federalist,"  p.  486  et.  seg. 


58  THE  EXECUTIVE  POWER 

apt  to  feel  himself  too  little  interested  in  it  to  haz- 
ard any  material  censure  or  perplexity  from  the 
independent  exertion  of  his  powers,  or  from  encoun- 
tering the  ill  humors,  kowever  transient,  which 
may  happen  to  prevail,  either  in  a  considerable  part 
of  the  society  itself,  or  even  in  a  predominant  fac- 
tion of  the  legislative  body.  If  the  case  should 
only  be  that  he  might  lay  it  down,  unless  continued 
by  a  new  choice,  and  if  he  should  be  desirous  of 
being  continued,  his  wishes,  conspiring  with  his 
fears,  would  tend  still  more  powerfully  to  corrupt 
his  integrity  or  debase  his  fortitude.  In  either 
case,  feebleness  and  irresolution  must  be  the  char- 
acteristics of  the  station." 

"There  are  some  who  would  be  inclined  to  re- 
gard the  servile  pliancy  of  the  executive  to  a  pre- 
vailing current,  either  in  the  community  or  in  the 
Legislature,  as  its  best  recommendation.  But  such 
men  entertain  very  crude  notions,  as  well  as  of  the 
purposes  for  which  government  was  instituted,  as 
of  the  true  means  by  which  the  public  happiness 
may  be  promoted.  The  republican  principle  de- 
mands that  the  deliberate  sense  of  the  community 
should  govern  the  conduct  of  those  to  whom  they 
intrust  the  management  of  their  affairs ;  but  it  does 
not  require  an  unqualified  complaisance  to  every 
sudden  breeze  of  passion,  or  to  every  transient  im- 
pulse which  the  people  may  receive  from  the  arts 
^of  men  who  flatter  their  prejudices  to  betray  their 


IN  THE  UNITED  STATES.  59 

interests.  It  is  a  just  observation  that  tlie  people 
commonly  intend  the  public  good.  This  often  applies 
to  their  very  errors.  But  their  good  sense  would 
despise  the  adulator  who  should  pretend  that  they 
always  reason  right  about  the  means  of  promoting 
it.  They  know  from  experience  that  they  some- 
times err,  and  the  wonder  is,  that  they  so  seldom 
err  as  they  do,  beset,  as  they  continually  are,  by 
the  wiles  of  parasites  and  sycophants  ;  by  the  snares 
of  the  ambitious,  the  avaricious,  the  desperate ;  by 
the  artifices  of  men  who  possess  their  confidence 
more  than  they  deserve  it;  and  of  those  who  seek 
to  possess  rather  than  to  deserve  it.  When  occa- 
sions present  themselves,  in  which  the  interests  of 
the  people  are  at  variance  with  their  inclinations, 
it  is  the  duty  of  the  persons  whom  they  have  ap- 
pointed to  be  the  guardians  of  those  interests,  to 
withstand  the  temporary  delusion  in  order  to  give 
them  time  and  opportunity  for  more  cool  and  sedate 
reflection.  Instances  might  be  cited  in  which  a 
conduct  of  this  kind  has  saved  the  people  from 
very  fatal  consequences  of  their  own  mistakes,  and 
has  procured  lasting  monuments  of  their  gratitude 
to  the  men  who  had  courage  and  magnanimity 
enough  to  serve  them  at  the  peril  of  their  displea- 
sure  "^ 

Nor  should  the  executive  yield  to  the  caprices 
of  the  Legislature.  "It  may  sometimes  stand  in  op- 

l The  "Federalist,"  p.  496  et  seq. 


6o  THE  EXECUTIVE  PC  WER 

position  to  llie  forme? :  and  at  other  times  the  peo- 
ple may  be  entirely  neutral.  In  either  supposition,  it 
is  certainly  desirable  that  the  executive  should  be 
in  a  situation  to  dare  to  act  his  own  opinion  with 
vigor  and  decision." 

If  it  is  necessary  to  divide  power  between  differ- 
ent branches  of  the  government,  it  is  equally  indis- 
pensable to  guarantee  the  independence  of  each 
What  good  purpose  would  be  subserved  by  sepa- 
rating the  executive  and  the  judicial  from  the  legis- 
lative power,  if  the  first  two  were  so  constituted, 
as  to  be  constrained  to  obey  implicitly  the  third? 
In  such  a  case  a  division  would  be  purely  nominal, 
and  none  of  the  expected  results  would  be  realized. 
"It  is  one  thing  to  be  subordinate  to  the  laws,  and 
another  to  be  dependent  on  the  legislative  body. 
The  first  comports  with,  the  last  violates,  the  funda- 
mental principles  of  good  government ;  and  what- 
ever may  be  the  forms  of  the  Constitution,  unites 

all  powers  in  the  same  hands In  governments 

purely  republican  this  tendency  is  almost  irresisti- 
ble. The  representatives  of  the  people,  in  a  popular 
assembly,  seem  sometimes  to  fancy  that  they  are 
the  people  themselves,  and  betray  strong  symptoms 
of  impatience  and  disgust  at  the  least  sign  of  oppo- 
sition from  any  other  quarter,  as  if  the  exercise 
of  its  riehts  by  either  the  executive  or  judiciary 
were  a  breach  of  their  privilege  and  an  outrage  to 


IN  THE  UNITED  STATES.  6r 

their  dignity.   Tliey  often  appear  disposed  to  exert 
an  imperious  control  over  the  other  departments."  ^ 

As  regards  the  duration  of  the  presidential  term, 
the  Federalist  asks  if  four  years  suffices  to  give  to 
the  Executive  Power  that  vigor  which  is  essential 
to  it?  and  in  reply. expresses  its  apprehensions: 
"Between  the  commencement  and  termination  of 
such  a  period  there  would  always  be,"  said  liamil 
ton,  "  a  considerable  interval,  in  which  the  prospect 
of  annihilation  would  be  sufficiently  remote  not  to 
have  an  improper  effect  upon  the  conduct  of  a  man 
endued  with  a  tolerable  portion  of  fortitude,  and  in 
which  he  might  reasonably  promise  himself  that 
there  would  be  time  enough  before  it  arrived  to 
make  the  community  sensible  of  the  propriety  of  the 
measures  he  might  be  inclined  to  pursue.  Though 
it  is  probable  that,  as  he  approached  the  moment 
when  the  public  were,  by  a  new  election,  to  signify 
their  sense  of  his  conduct,  his  confidence,  and  with 
it  his  firmness,  would  decline." 

And  in  the  third  place,  the  executive  authority 
must  be  maintained,  and  with  this  view  the 
President  is  to  receive  a  salary  in  proportion  to 
the  importance  of  his  functions.  Had  this  point 
been  overlooked  in  the  Constitution,  thought  the 
authors  of  the  "Federalist,"  the  separation  of  the 
executive  and  legislative  branches  of  the  govern- 
ment would  be  quite  illusory.     If  Congress  had  a 

1  Tlie  "Federalist,"  p.  499. 


62       '  THE  EXECUTIVE  POWER 

discretionary  power  over  the  compensation  of  tlie 
chief  magistrate,  he  would  cease  to  be  independent. 
The  legislative  power  could  in  a  measure  starve  him 
out.  Therefore  the  Constitution  prescribes  that 
''  The  President  of  the  United  States  shall,  at  stated 
times,  receive  for  his  service  a  compensation,  ivhich 
shall  neither  he  increased^  nor  diminished^  during  the 
period  for  which  he  shall  have  been  elected;  and  he 
shall  not  receive  within  that  period  any  other  emolu- 
ment from  the  United  States,  or  any  of  them." 

Thus,  at  the  time  of  his  election,  Congress  de- 
termines once  for  all  what  pecuniary  provision  shall 
be  made  for  him  during  his  term  of  office. 

Finally,  in  order  to  give  him  that  vigor  which  is 
indispensable  to  the  efficient  exercise  of  his  func- 
tions, he  must  have  the  requisite  prerogatives. 
The  Constitution  defines  them ;  but  this  is  not  the 
place  to  examine  them  in  detail. 

)  Thus  the  framers  of  the  Constitution  determined 
to  assure  to  the  Executive  Power  both  independ- 
ence and  vigor;  to  organize  it,  in  a. word,  in  such 
manner  that  it  should  possess  all  the  requisite  qual- 
ities for  the  conduct  of  affairs.  ^\  Kesults  attest 
that  their  plan  was  well  conceived. 

Notwithstanding  the  numerous  struggles  that 
have  taken  place  between  the  three  powers,  these 
co-ordinate  and  independent  branches  of  the  Federal 
government  have  been  able  to  co-exist. 

1  The  "^Federalist,"  p.  86  el  seg. 


IN  THE  UNITED  STATES.  63 

Experience  also  proves  that  (thanks  to  the  term 
of  office  fixed  by  the  Constitution  for  the  President 
and  for  Congress)  a  contest  between  them  would 
never  be  pushed  to  extreme  consequences,  and  that 
the  people,  as  sovereign  judge  of  the  questions  at 
issue  between  the  contending  parties,  would  almost 
always  be  able  to  intervene  in  time. 

However,  the  Constitutional  Convention  was  not 
able  to  organize  a  system  of  political  responsibility. 
Doubtless,  it  provided  that  all  federal  functionaries, 
the  President  not  excepted,  might  be  impeached 
by  the  House  of  Kepresentatives  and  tried  by  the 
Senate ;  but,  as  will  be  seen  in  the  course  of  this 
work,  this  procedure  applies  solely  to  the  func- 
tionary who  has  committed  a  crime  or  a  misde- 
meanor which  a  law  of  the  United  States  defines  .and 
punishes.  His  criminal  responsibility  is  confined 
within  those  limits. 

/"It  is  true  that  the  President  is  morally  responsi- 
ble to  the  people ;  public  opinion  may  always  con- 
demn him.  But  if  the  entire  nation,  as  if  with  one 
voice,  should  arraign  and  consure  him,  his  legal 
situation  would  in  no  wise  be  modified.  In  fact, 
he  would  probably  have  lost  all  his  moral  authori- 
ty, but  in  law,  he  would  none  the  less  continue  to 
exercise  to  the  fullest  extent  all  the  inherent  powers 
of  the  presidential  office. 

It  is  said  that  it  would  have  been  otherwise,  had 
the  Constitution  established   ministerial  responsi- 


64  THE  EXECUTI\'E  POWER 

bility.  A  council,  according  to  the  doctrine  of  a 
well-known  school,  would  have  sufficed  to  harmon- 
ize these  independent  powers;  nevertheless  the 
United  States  were  right  in  rejecting  the  system. 

The  President  is  elected  by  the  people ;  the  Con- 
stitution confers  upon  him  large  powers.  What 
purpose  would  this  election  subserve,  and  of  what 
avail  would  be  these  powers,  if  the  chief  magistrate 
was  obliged  to  surround  himself  with  a  council, 
organized  for  the  purpose  of  governing  in  his  name  ? 
He  would  then  necessarily  become  the  instrument 
of  Congress,  and  be  constrained  to  yield  incessantly 
to  its  wishes.  His  situation  would  soon  be  ren- 
dered intolerable ;  elected  by,  and  morally  respon- 
sible to,  the  people,  he  would  be  compelled  to  let 
his  council  govern  in  order  to  satisfy  the  legisla- 
tive power  !  Had  this  been  the  case  the  executive 
authority  would  have  almost  entirely  disappeared. 
The  supreme  power  would  then  abide  in  Congress  ; 
and  this  is  precisely  what  a  democratic  people 
should  above  all  things  avoid.  If  the  appropriate 
province  of  legislative  assemblies  is  yet  but  imper- 
fectly understood,  the  cause  of  the  errors  which 
prevail  in  this  regard  may  be  readily  found.  For 
nearly  a  century  the  constitutional  and  parliament- 
ary school  of  Europe  has  to  some  extent  based  its 
doctrines  on  Enujlish  tradition.  Doubtless,  in  the 
great  British  monarchy,  Parliament  has  been  able 
to  occupy  the  first  place  ;  but  the  Executive  Power 


IN  THE  UNITED  STA  TES.  65 

is  there  hereditary  and  irresponsible,  and  therefore 
bears,  in  this  respect,  no  resemblance  to  the  elective 
presidency.  Again,  English  parliamentary  author- 
ity has  for  a  long  time  been  engrossed  by  a  small 
number  of  persons.  The  heads  of  aristocratic  fam- 
ilies have  almost  to  the  present  day  governed  the 
affairs  of  the  nation.  How  different  the  conditions 
imposed  by  a  democratic  society  upon  the  legisla- 
tive assemblies.  The  latter  may  doubtless  be  well 
qualified  to  pass  laws  and  discuss  the  budget  of 
receipts  and  expenditures  ;  at  least  up  to  the  pres- 
ent time  no  substitute  for  them  has  been  found  in 
a  free  government,  but  history  famishes  scarcely 
an  instance  of  their. capacity  to  govern  the  country 
which  they  represent. 

In  the  United  States,  if  the  administration  of 
public  affairs  devolved  on  Congress, .  it  is  very 
questionable  whether  a  judicious  use  would  long  be 
made  of  its  authority.  Disorder  in  transacting 
them  would  probably  soon  be  manifest.  Now,  it 
must  not  be  forgotten  that  disorder — and  this  is 
specially  the  case  in  democratic  nations — is  essen- 
tially incompatible  with  liberty.  Forced  to  choose 
between  anarchy  and  despotism,  they  will  always 
select  the  latter  alternative.  In  this  respect,  they 
are  infinitely  more  impressionable  than  aristocracies, 
and  the  framers  of  the  Constitution  were  fully 
aware  of  the  fact.  Their  resolution  to  exclude  the 
plan  of  an  executive  council  was,  however,  only 
5 


66  THE  EXECUTIVE  POWER 

reached  after  long  debates.  The  English  parlia- 
mentary system  had  great  prestige  in  their  eyes, 
and  their  refusal  to  adopt  it  must  be  ascribed  to 
their  conviction,  that  it  was  incompatible  with  the 
existence  of  a  republican  government.  Being  thus 
constrained  to  give  to  the  executive  branch  the 
unity,  vigor  and  powers  which  are  indispensable 
to  it,  and,  at  the  same  time,  shield  it  from  political 
responsibility  to  Congress,  they  preferred  to  submit 
to  the  great  inconveniences  which  might  result 
from  the  sacrifice.  At  the  same  time  they  limited 
the  presidential  term  to  four  years.  The  people,  by 
the  exercise  of  their  sovereign  power,  can  correct, 
at  the  end  of  this  period,  the  error  which  they  may 
have  committed  at  its  commencement. 

If  we  reflect,  however,  on  the  conditions  under 
which  the  ^President  is  nominated  by  a  convention 
and  elected  by  the  people,  we  cannot  avoid  the 
conclusion,  that  if  the  hereditar37-  transmission  of 
power  is  exposed  to  great  hazards,  those  incident 
to  a  popular  election  are  perhaps  equally  great. 
And  yet  the  people  ought  to  be  willing  to  acquiesce 
in  a  choice  imprudently  made.  The  Executive 
Power  is  confided  to  their  selected  agent  for  four 
years.  If  they  have  been  deceived  by  him,  they 
must  quietly  submit  until  the  expiration  of  his 
term.  It  is  only  on  these  conditions  that  the 
republic  can  be  maintained. 

Another  question,  almost  as  complicated  as  the 


IN  THE  UNITED  STATES.  67 

preceding  ones,  the  re-eligibilitj  of  the  President, 
was  also  presented  for  the  consideration  of  the 
framers  of  the  Constitution.  Thej  determined  it 
in  the  afl&rniative.  Hamilton  thus  explains  in  the 
"  Federalist "  the  motives  which  led  them  to  this 
result : 

"  One  ill  effect  of  the  exclusion  would  be  a  dimi- 
nution of  the  inducements  to  good  behavior.  There 
are  few  men  who  would  not  feel  much  less  zeal  in 
the  discharge  of  a  duty,  when  they  were  conscious 
that  the  advantages  of  the  station  with  which  it 
was  connected  must  be  relinquished  at  a  determi- 
nate period,  than  when  they  were  permitted  to  en- 
tertain a  hope  of  obtaining  by  meriting  a  continu- 
ance of  them.  This  position  will  not  be  contested 
so  long  as  it  is  admitted  that  the  desire  of  reward 
is  one  of  the  strongest  incentives  of  human  con- 
duct, or  that  the  best  security  for  the  fidelity  of 
mankind  is  to  make  their  interest  coincide  with 
their  duty."  ^ 

At  the  same  time  Hamilton  was  of  opinion  that 
in  this  way  the  President  would  not  allow  himself 
to  be  influenced  by  unworthy  designs,  which  might 
even  lead  to  ideas  of  usurpation. 

"A  third  ill  effect  of  the  exclusion  would  be  the 
depriving  the  community  of  the  advantage  of  the 
experience  gained  by  the  chief  magistrate  in  the 
exercise  of  his  office What  more  desirable  or 

1  The  "  Federalist,"  p.  502  et  seq. 


68  THE  EXECUTIVE  POWER 

more  essential  tlian  this  quality  in  the  governors 
of  nations?  Can  it  be  wise  to  put  this  desirable 
and  essential  quality  under  the  ban  of  the  Constitu- 
tion, and  to  declare  that  the  moment  it  is  acquired 
its  possessor  shall  be  compelled  to  abandon  the 
station  in  which  it  was  acquired,  and  to  which  it 

was  adapted? And  yet,  what  would  result 

from  such  exclusion? — the  banishing  men  from  sta- 
tions in  which,  in  certain  emergencies  of  the  State, 
their  presence  might  be  of  the  greatest  moment  to 
the  public  interest  and  safety.  There  is  no  nation 
which  has  not,  at  one  period  or  another,  experi- 
enced an  absolute  necessity  of  the  services  of  par- 
ticular men  in  particular  situations;  perhaps  it 
would  not  be  too  strong  to  say,  to  the  preservation 
of  its  political  existence."  ^ 

To  those  who  \  assumed  that  the  very  fact  of 
exclusion  would  assure  a  greater  degree  of  independ- 
ence to  the  chief  magistrate  and  a  better  security 
to  the  people,  Hamilton  replied  by  presenting  con- 
siderations of  a  nature  to  show,  in  his  view,  the 
futility  of  such  objections.  As  is  known,  the  con- 
stitutional provision  has  been  maintained  to  the 
present  day ;  the  President  has  always  been  re- 
eligible.  However,  guided  by  the  example  of 
Washington,  who  had  himself  refused  the  third 
election,  the  practice  has  been  to  re-elect  the  Presi- 
dent but  once. 

1  The  "  Federalist,"  p.  505  et  seq. 


IN  THE  UNITED  STATES.  69 

Nevertheless,  in  1829,  General  Jackson  recom- 
mended to  Congress  the  adoption  of  a  constitu- 
tional amendment,  declaring  that  the  President 
could  not  be  elected  a  second  time.  ^  Since  then 
the  question  has  been  often  agitated,  and  the  dis- 
advantages resulting  from  the  system  now  in  force 
have  been  pointed  out  from  time  to  time  by  lead- 
ing statesmen. 

It  has  been  said  that  in  every  country  the 
inquiry  naturally  suggests  itself,  whether  the  ruler 
of  the  nation,  holding  in  his  hands  the  resources  of 
the  Executive  Power,  is  an  ordinary  candidate? 
When  the  patronage  and  authority  vested  in  him 
by  the  Constitution  be  considered,  it  is  obvious  that, 
in  an  electoral  contest,  he  occupies  a  different 
position  from  that  of  a  private  citizen,  soliciting 
the  people  to  confer  upon  him  the  first  office  in 
their  gift. 

The  party  which  aids  in  securing  the  re-election  of 
the  President  is  also  placed  in  an  exceptional  situ- 
ation. It  is  supported  by  the  office-holders,  who 
place  at  its  disposal  all  the  influence  of  the  govern- 
ment. If  we  suppose  an  administration  as  regular 
and  as  well  organized  as"  could  be  desired,  yet  even 
then  the  means  of  action  that  the  President  may 
use  will  be  immense. 

As  has  been  elsewhere  very  justly  remarked,  if 

1  See  his  first  annual  message,  in  the  compilation  entitled,  "Ad- 
dress and  Messages,  of  the  President,"  New  York,  1842. 


70  THE  EXECUTIVE  POWER 

magistracies,  traditionally  constituted  and  irremova- 
ble, can  assure  but  imperfectly  the  independence  af 
the  incumbents,  what  will  be  the  result  when  func- 
tionaries are  interested,  whose  official  existence,  or 
at  least  advancement,  may  depend  on  the  executive 
chief. 

The  advocates  of  the  re-eligibility  of  the  President 
affirm,  in  reply  to  these  criticisms,  that  the  public 
service  might  and  should  be  organized  and  regulated 
so  as  to  protect  dependent  functionaries  from  any 
pressure  that  he  might  bring  to  bear  upon  them. 
Nothing  is  less  sound  than  this  argument,  for  he 
will  always  have  means  of  influence  powerful 
enough  to  constrain  them  to  conform  to  his  wishes: 
When  he  desires  a  re-election,  he  employs  in  the 
attainment  of  that  object  all  the  means  that  the 
Constitution  gives  him.  If  he  has  conceived  this 
design  for  some  time  previous  to  the  commence- 
ment of  the  presidential  campaign,  he  calls  around 
him  those  partisans  who  favor  his  wishes,  and 
distributes  amongst  them  his  political  patronage,  so 
as  to  acquire  in  the  party,  which  has  already  elected 
him,  that  aid  which  is  indispensable  to  his  purpose. 
By  the  emploj^ment  of  all  the  resources  at  the 
disposal  of  the  administration,  as  many  journals  as 
possible  are  enlisted  for  the  candidate  for  re-elec- 
tion. Gradually  the  office-holders  organize  all  over 
the  country  primary  meetings,  which  are  skillfully 
composed  of  devoted  parrtisans.     A  united  effort  is 


IN  THE  UNITED  STATES.  71 

then  made,  and  a  national  convention,  consisting  of 
delegates  carefully  chosen,  ratifies  the  decision 
made  a  long  time  before  by  the  chief  of  the  Execu- 
tive Power. 

From  the  moment  of  the  nomination  the  strength 
of  the  party  combines  with  the  administrative  or- 
ganization of  the  United  States.  They  are  blended 
to  such  a  deoree,  that  their  separate  existence  ceases 
for  a  time  ;  then  the  partisans  can  no  longer  be  dis- 
tinguished from  the  functionaries,  for  they  are  all 
transformed  into  electioneering  agents.  Without 
having  witnessed  such  a  spectacle,  it  is  doubtful  if 
a  European  can  appreciate  its  character  ;  he  would 
find  it  difficult  to  understand  the  extent  to  which 
matters  are  pushed.  When  the  electoral  struggle 
begins,  neutrality  is  no  longer  permitted.  If  a 
politician  tries  to  preserve  his  independence  and  at 
the  same  time  remain  in  full  fellowship  with  his 
party,  he  is  soon  forced  by  its  discipline  to  express 
his  sentiments,  and  if  he  openly  revolts  against  this 
tyranny,  he  will  be  denounced  as  a  traitor,  no  mat- 
ter what  signal  services  he  may  have  previously 
rendered.  His  conscientious  resistance  to  the  ex- 
actions and  intrigues  of  party  leaders  will  soon 
shi'oud  in  oblivion  all  his  past  efforts  and  sacri- 
fices. 

Such  proceedings  have  an  inevitable  tendency 
to  corrupt  the  public  morals.  Their  recurrence, 
then,  must  be  prevented.     This  can  only  be  effect- 


72  THE  EXECUTIVE  POWER 

ually  accomplished  by  a  constitutional  amendment 
prohibiting  the  re-election  of  the  President.  Much 
reliance  cannot  be  safely  placed  upon  his  patriotic 
abnegation.  During  his  first  term  he  has  before  him 
the  history  of  his  predecessors,  and  beholds  them, 
so  to  say,  divided  into  two  classes,  in  one  of  which 
are  found  those  who  held  the  office  for  eight  years, 
and  at  their  head  is  the  name  of  Washinsfton.  In 
the  other,  are  those  whose  administration  was  not 
always  crowned  with  success,  and  it  is  natural  that 
he  should  seek  to  be  ranked  with  the  first.  The 
more  elevated  his  sentiments,  the  more  will  he 
cherish  a  legitimate  ambition,  coupled  with  an 
earnest  desire  to  prolong  the  duration  of  his  service 
and  to  perpetuate  his  name.  In  this  case,  the  noblest 
impulses  of  human  nature  will  prpmpt  him  to  solicit 
the  honor  of  a  new  lease  of  official  life. 

Doubtless  such  exceptional  circumstances  may 
occur  as  to  render  the  re-election  of  the  President 
up  to  a  certain  point  a  public  necessity.  But  too 
much  importance  must  not  be  attached  to  what 
may  be  said  in  this  respect.  If  ever  an  election 
occurred  during  a  crisis,  it  was  that  of  1864,  which 
returned  Mi.  Lincoln  to  a  second  te^m.  The  elec- 
toral campaign  took  place  during  the  war,  and  as 
he  himself  said  in  words  which  were  at  least 
quaintly  original,  "  it  is  not  prudent  to  swap  horses 
in  the  middle  of  a  river."  However,  it  is  very 
doubtful  if  his  rare  gifis  and  the  prestige  of  his 


IN  THE  UNITED  STATES.  73 

honored  name  were  indispensable  to  the  safety 
of  the  Union.  In  1864,  even  under  circumstan- 
ces of  such  gravity,  the  Kepublican  party  could 
without  danger  have  elected  another  President. 
He  would  have  followed  the  same  line  of  conduct. 
Doubtless,  the  re-election  of  Mr.  Lincoln  gave  an 
emphatic  popular  sanction  to  the  policy  of  abolish- 
ing slavery  and  waging  war  until  all  armed  oppo- 
sition should  cease ;  but  any  other  candidate,  chosen 
with  a  view  to  this  programme,  would  have  prob- 
ably executed  it.  The  support  of  the  Eepublican 
party  would  have  been  given  to  the  elect  of  the 
nation,  and  the  effect  of  a  change  of  persons  would 
not  have  compromised  the  triumph  of  the  arms  of 
the  Union.  As  the  Constitution  p.ermitted  the 
re-election  of  Mr.  Lincoln,  his  success  offered  great 
advantages  ;•  but  if  that  instrument  had  interdicted 
it,  the  United  States  would  have  conformed  without 
serious  embarrassment  to  the  law  6f  exclusion. 

On  the  other  hand,  it  cannot  be  denied  that  a 
term  of  four  years,  without  a  possibility  of  re-elec- 
tion, is  not  long  enough.  In  fact,  the  President 
elect  enters  almost  always  upon  his  duties  without 
much  experience  in  public  affairs.  He  requires  at 
least  six  months  of  initiation  to  render  them  famil- 
iar to  him.  He  is  scarcely  then  in  the  exercise  of 
full  authority,  and,  unfortunately,  only  preserves  it 
during  two  years  and  a  half.  When  the  fourth 
year  of  his  term  commences,  the  country  enters 


74  THE  EXECUTIVE  POWER 

upon  a  new  presidential  crisis.  This  affects  tlie 
political  situation  to  such  a  degree  that,  up  to  the 
close  of  the  electoral  campaign,  something  like  a 
suspension  in  the  life  of  the  government  takes 
place.  After  the  election  of  his  successor,  the 
President  still  remains  in  office  fwir  months,  but 
he  then  confines  himself  almost  exclusively  to  clos- 
ing up  current  business. 

Thus,  many  thoughtful  persons  have  been  struck 
by  the  inconveniences  arising  out  of  the  short  du- 
ration of  the  term.  They  have,  therefore,  proposed 
to  prolong  it  by  two  years,  and  at  the  same  time 
rendej'  the  President  ineligible.  There  is  no  reason 
to  doubt  the  happy  results  of  this  reform.  He 
would  have  four  years  and  a  half  of  full  authority; 
and  this  arrangement  would  agree  very  well  with 
the  exigencies  of  a  democratic  society.  •  In  a  coun- 
try vv^here  a  disposition  to  watch  the  progress  of 
public  affairs  and  the  conduct  of  public  men  per- 
vades all  classes,  where  criticism  is  so  keen  and  so 
personal,  it  is  difficult  for  one  in  an  elevated  official 
position  to  resist  for  a  longer  time  the  incessant 
attacks  of  which  he  is  the  object.  Do  as  he  may, 
he  is  soon  worn  out. 

But,  then,  if  the  President  remained  in  office  six, 
or  even  eight  years,  the  essential  conditions  to  the 
existence  of  his  authority  could  not  be  modified, 
for  in  that  event  he  would  not  be  surrounded  by  a 
parliamentary  cabinet  responsible  to  Congress.     It 


IN  THE  UNITED  STATES.  75 

is  proper  also  to  observe,  by  the  way,  that  when 
Hamilton  proposed  to  elect  a  President  for  li  fe,  and 
thus  sought  to  approach  toward  an  hereditary  roy- 
alty, he  was  not  in  favor  of  surrounding  that  offi- 
cer with  a  council  taken  from  the  deliberative  as- 
semblies; he  maintained  that  this  power  should  be 
active,  energetic,  and  clothed  with  large  authority. 
However  that  may  be,  it  is  evident  that  if  an 
amendment  to  the  Constitution  should  extend  the 
presidential  term  to  six  years,  it  would  not  remedy 
grave  embarrassments.  Even  with  this  prolonged 
duration  a  lamentable  instability  in  the  chief  mag- 
istracy would  still  exist.  But  is  not  this  very  in- 
stability inherent  in  democratic  institutions,  and 
should  not  a  nation  ardently  devoted  to  them  cheer- 
fully accept  their  disadvantages  when  they  reap 
their  benefits  ?  Moreover,  in  a  society  so  constitut- 
ed politics  must  necessarily  be  confined  to  domestic 
exigencies,  which  occur  from  day  to  day.  All 
questions  of  foreign  policy  must  be  studiously 
avoided.  Certain  aristocracies  have  been  able  to 
prepare  slowly  the  greatness  of  the  country  they 
governed ;  generations  have  succeeded  each  other 
and  transmitted  an  immutable  tradition;  monar- 
chies have  done  the  same  thing  with  equal  suc- 
cess; the  father  has  taught  the  son  the  lessons  that 
he  had  himself  received  from  his  ancestors.  He 
has  made  it  his  glory  to  bequeath  to  his  successors 
the  means  of  securing  the  greatness  of  the  king- 


76  THE  EXECUTIVE  POWER 

dom,  and  the  same  spirit  has  thus  been  maintained 
for  ages.  The  countries  of  Europe  that  preserve 
their  unity  have  ahiiost-all  been  peopled  by  those 
patient  and  tenacious  races  who  have  preserved  and 
perpetuated  the  secret  of  the  national  thought.  A 
democratic  republic  does  not  pursue  a  similar  ob- 
ject. On  the  contrary,  it  can  scarcely  be  main- 
tained, except  upon  condition  of  setting  aside  all 
that  recalls  the  past.  Its  ideal  is  diiferent.  Its 
predominant  desire  is  to  assure  the  liberty  and 
equality  of  mankind.  If,  unfortunately,  that  is  no 
longer  cherished,  it  must  speedily  perish. 

It  is  important  for  nations  who  appear  to  desire 
a  republic  not  to  lose  sight  of  this  observation.  If, 
in  establishing  this  form  of  government,  Americans 
had  continued  the  traditions  of  the  old  European 
regimes^  they  would  soon  have  witnessed  its  down- 
fall. They  were  then  obliged  to  accept  the  essen- 
tial conditions  of  their  existence.  Had  they  been 
unable  to  do  so,  they  would  have  been  reduced  to 
two  alternatives — either  to  establish  a  monarchy, 
and  clothe  the  king  with  considerable  power,  or  to 
endanger  the  very  life  of  the  nation. 


CHAPTER  III. 

OF  FUNCTIONARIES  CHARGED  WITH  ADMINISTRATIVE 
ACTION. 

^  ^  r  I  aHE  administration  of  government,"  says 
I  the  "Federalist,"  "in  its  largest  sense, 
comprehends  all  the  operations  of  the  bodj 
politic,  whether  legislative,  executive  or  judicial; 
but  in  its  most  usual,  and  perhaps  in  its  most  pre- 
cise signification,  it  is  limited  to  executive  details, 
and  falls  peculiarly  within  the  province  of  the  ex- 
ecutive department.  The  actual  conduct  of  foreign 
negotiations,  the  preparatory  plans  of  finances,  the 
application  and  disbursement  of  public  moneys  in 
conforijiity  to  the  general  appropriations  of  the  Leg- 
islature, the  arrangement  of  the  army  and  navy, 
the  direction  of  the  operations  of  war.  These,  and 
other  matters  of  like  nature,  constitute  what  seems 
to  be  most  properly  understood  by  the  administra- 
tion of  government.  The  persons,  therefore,  to 
whose  immediate  management  these  different  mat- 
ters are  committed,  ought  to  be  considered  as  the 
assistants  or  deputies  of  the  chiof  magistrate,  and 
on  this  account  they  ought  to  derive  their  offices 
(77) 


73  THE  EXECUTIVE  POWER 

from  his  appointment,  at  least  from  his  nomination, 
and  ought  to  be  subject  to  his  superintendence."  ^ 

Snch  were,  no  doubt,"  the  considerations  which 
controlled  the  convention  in  conferring  on  the  Pres- 
ident the  power  of  selecting  the  chiefs  of  the 
various  departments,  who  are  charged  with  admin- 
istrative action. 

At  the  first  session  of  Congress,  the  question 
relative  to  the  executive  departments  was  pre- 
sented. The  debates  to  which  their  organization 
gave  rise  are  considered,  by  competent  judges,  as 
the  most  remarkable,  perhaps,  which  have  occurred 
in  the  parliamentary  history  of  the  United  States. 
The  chief  point  in  controversy  was  as  to  the  power 
of  the  President  to  remove  a  federal  officer.  It 
probably  had  not  specially  attracted  the  attention 
of  the  framers  of  the  Constitution.  They  were 
aware  that  he  could  not  be  appointed  for  life,  as 
they  made  an  express  exception  to  this  rule  in  the 
tenure  of  office  of  the  members  of  the  supreme  and 
inferior  courts.  At  the  same  time  they  declared 
that  the  President  should,  by  and  with  the  advice 
and  consent  of  the  Senate,  appoint  all  officers 
whose  appointments  were  not  otherwise  provided 
for  in  the  Constitution,  and  they  authorized  Con- 
gress to  vest  the  appointment  of  iifferior  officers, 
either  in  the  President,  in  the  courts  of  law,  or  in 
the  heads  of  departments.     This  clause  of  the  Con- 

iTho  "Pedei-aUst,"  p.  502. 


IN  THE   UNITED  STATES.  79 

stitution  gave  rise  to  the  whole  difficulty.  A  Rep- 
resentative in.  Congress,  who  had  played  an  impor- 
tant part  in  the  convention  of  Philadelphia,  insisted 
that  the  consent  of  the  Senate  was  as  essential  to 
the  removal  of  an  officer  as  it  was  to  his  appoint- 
ment. Mr.  Madison  replied  that  the  President  had 
the  exclusive  power  to  choose  his  agents,  and  that 
the  constitutional  restriction  touchins-  the  inter- 
vention  of  the  Senate  in  appointments  should  be 
considered  only  as  an  exception,  which  could  not 
.  be  extended  in  the  absence  of  an  express  provision 
authorizing  it.  Now  there  is  no  clause  sanction- 
ing or  requiring  the  action  of  the  Senate  in  cases 
of  removal.  He  further  contended  that  the  gravest 
political  considerations  confirmed  this  interpreta- 
tion. "It  is,"  said  he,  "evidently  the  intention  of 
the  Constitution,  that  the  first  magistrate  should  be 
responsible  for  the  executive  department ;  so  far, 
therefore,  as  we  do  not  make  the  officers  who  are 
to  aid  him  in  that  department  responsible  to  him, 
he  is  not  responsible  to  the  country."  He  then 
pointed  out  the  dangers  which  would  result  from 
the  opposite  view.  The  menaced  functionary 
might  find  supporters  in  the  Senate,  and  this  would 
give'  rise  to  inevitable  conflicts  between  it  and  the 
executive."  "I  believe,"  said  he  finally,  "that  no 
principle  is  more  clearly  established  in  the  Consti- 
tution than  that  of  responsibihty."  Another  Rep- 
resentative expressed  the  same  opinions.     "  If  the 


8o  THE  EXECUTIVE  POWER 

President,"  said  lie,  "complains  to  the  Senate  of  the 
misconduct  of  an  officer,  and  desires  their  advice 
and  consent  to  the  removal,  what  are  the  Senate  to 
do  ?  Naturally  they  will  inquire  if  the  complaint 
is  well  founded.  To  do  this,  they  must  call  the 
officer  before  them  to  answer.  Who,  then,  are  the 
parties?  The  supreme  executive  officer  against 
his  assistant,  and  the  Senate  are  to  sit  as  judges  to 
determine  whether  sufficient  cause  for  removal  ex- 
ists. Does  not  this  set  the  Senate  over  the  head 
of  the  President  ?  But  suppose  they  shall  decide 
in  favor  of  the  officer,  what  a  situation  is  the  Presi- 
dent then  in,  surrounded  by  officers  with  whom,  by- 
his  situation,  he  is  compelled  to  act,  but  in  whom 
he  can  have  no  confidence."  ^ 

Such  were  the  considerations  that  decided  the 
House  to  recognize  the  President's  constitutional 
power  of  removal,  at  least  in  all  cases  where  the 
power  to  appoint  was  not  subject  to  legislative 
delegation. 

The  Senate  had  in  its  turn  to  pass  upon  the  same 
question.  Mr.  Charles  Francis  Adams  thus  recounts 
what  took,  place  on  this  memorable  occasion: 
*'  But  throughout  the  iadministation  of  General 
Washington  there  is  visible  among  public  men  a 
•degree  of  indifference  to  power  and  place,  which 
forms  one  of  the-most  marked  features  of  that  timeT 
To  this  fact  it  is  owing  that  public  questions  of 

1  Debates  of  Congress,  Vol.  I.,  pp.  480-487. 


IN  THE  UNITED  STATES.  iSi 

such  moment  were  then  discussed  with  as  much 
personal  disinterestedness  as  can  probably  ever  be 
expected  to  enter  into  them  anywhere,  yet,  even 
with  all  these  favorable  circumstances,  it  soon  be- 
came clear  that  the  republican  jealousy  of  a  central- 
ization of  power  in  the  President  would  combine 
with  the  esprit  de  corps  to  rally  at  least  half  the 
Senate  in  favor  of  subjecting  removals  to  their 
control.  In  such  a  case  the  responsibility  of 
deciding  the  point  devolved,  by  the  terms  of  the 
Constitution,  upon  Mr.  Adams,  as  Vice-president. 
It  was  the  first  time  that  he  had  been  sum- 
moned to  such  a  duty His  decision  settled  the 

question  of  constitutional  power  in  favor  of  the 
President,  and  consequently  established  the  practice, 
under  the  government,  which  has  continued  to 
this  day."  ^ 

In  vindicating  the  action  of  Congress  on  the 
right  of  removal,  Chancellor  Kent  observes  in  his 
commentaries  that  the  power  of  the  President  is 
justified  by  the  most  weighty  reasons.  The  subor- 
dinate'functionaries  of  the  executive  department 
ought  to  hold  at  the  pleasure  of  its  head,  because 
he  is  invested  generally  with  the  executive  authority 
and  every  participation  in  that  authority  by  the 
Senate  is  an  exception  to  a  general  principle  and 
ought  to  be  taken  strictly.  "  The  President  is  the 
great  functionary,  responsible  for  the  faithful  execu- 

1  Life  of  John  Adams,  by  Charles  Francis  Adams,  Vol.  1.,  p.  448. 
6 


82  THE  EXECUTIVE  POWER 

tion  of  the  law,  arjd  the  power  of  removal  was 
incidental  to  that  duty^  and  might  often  be  requisite 
to  fulfill  it."i 

In  1839  the  question  was  also  decided  in  a  simi- 
lar sense  by  the  Supreme  Court.  Matters  rested 
there  until  the  presidency  of  Mr.  Johnson. 

During  the  session  of  1866-67,  Congress  passed 
an  act  "  regulating  the  tenure  of  certain  civil  offices." 
It  provides  that  "  every  person  holding  any  civil 
office  to  which  he  has  been  appointed  by  and  with 
the  advice  and  consent  of  the  Senate,  and  every 
person  who  shall  be  hereafter  appointed  to  any 
such  office,  and  shall  become  duly  qualified  to  act 
therein,  is,  and  shall  be,  entitled  to  hold  such 
office  until  a  successor  shall  have  been  in  like 
manner  appointed  and  duly  qualified.'^  It  adds : 
"  Provided^  that  the  Secretaries  of  State,  of  the 
Treasury,  of  War,  of  the  Navy  and  the  Interior, 
the  Postmaster-general  and  the  Attorney-general, 
shall  hold  their  offices  respectively  for  and  during 
the  term  of  the  President,  by  whom  they  may 
have  been  appointed." 

Mr.  Johnson  coald  not  mistake  the  bearing  of 
this  measure.  It  reversed  the  settled  practice  of 
the  Government  since  1789,  and  put  the  President 
himself  under  the  guardianship  of  the  Senate.  At 
the  same  time  Congress  specially  had  in  view  keep- 

1  Kent's  Commentaries,  7th  edition,  Vol,  I.,  pp.  30&-307. 

2  Ex-parte  Hennen,  13  Peters,  p.  139. 


IN  THE  UNITED  STATES.  83 

ing  in  office  the  Secretary  of  War,  in  whom  the 
Republican  majorities  had  the  utmost  confidence, 
and  who,  for  that  very  reason,  was  peculiarly  ob- 
noxious to  Mr.  Johnson.  Nevertheless,  the  latter 
could  not  prevent  the  passage  of  the  bill ;  it  became 
a  law  notwithstanding  his  veto. 

A  year  after  the  adoption  of  this  measure,  which 
had  contributed  more  than  any  other  to  render  him 
powerless,  Mr.  Johnson  thought  that  he  had  discov- 
ered the  means  of  evading  its  provisions,  and  he 
removed  the  Secretary  of  War.  The  House  of 
Representatives  construed  this  act  as  a  declaration 
of  hostilities. 

The  long  expected  occasion  occurred,  and  the 
President  was  impeached.  It  was  the  province  of 
the  Senate,  sitting  as  a  high  court,  for  the  purpose 
of  trying  him,  to  decide  upon  his  imputed  violation 
of  the  act  of  1867,  and  also  upon  the  constitution- 
ality of  the  act  itself.  The  verdict  of  acquittal 
proved  that,  even  under  the  extraordinary  circum- 
stances in  which  it  was  rendered,  the  Senate  would 
not  so  interpret  the  law  as  to  oblige  him  to  retain 
in  ofl&ce  a  hostile  Cabinet.  The  executive  thus  suc- 
cessfully resisted  this  exaggerated  claim  of  Con- 
gress. 

The  tenure  of  office  act  owed  its  existence  to  a 
peculiar  condition  of  affairs,  and  to  a  mistaken  be- 
lief of  its  necessity  to  the  safety  of  the  nation.  It 
has  been  in  a  great  measure  repealed,  and  things 


84  THE  EXECUTIVE  POWER 

have  in  a  great  degree  returned  totlieir  accustomed 
order.  The  right  of  the  President  to  choose  the 
members  of  the  Cabinet,  and  other  administrative 
functionaries^  is  no  longer  subject  to  any  important 
restrictions. 

Aside  from  some  unusual  occasions,  when  party 
spirit  has  almost  always  played  a  conspicuous  part, 
the  President's  nominations  of  the  members  of  his 
Cabinet  have  been  in  general  confirmed  without 
difficulty  by  the  Senate.  That  body  has  usually 
respected  his  wishes,  and  left  him  at  full  liberty  to 
choose  his  confidential  advisers.  The  practice  of 
the  several  Presidents  has  in  this  respect  varied  to 
the  greatest  extent.  Some  have  appointed  to  these 
arduous  positions  men  of  distinction,  others,  personal 
friends,  without  experience  or  special  qualifications. 
Washington  called  to  his  aid  two  of  the  most  emi- 
nent statesmen  of  the  day,  and  exerted  all  his  influ- 
ence to  bring  about  their  harmonious  co-operation. 
In  our  times,  Mr.  Lincoln  selected  his  council  from 
the  leaders  of  the  Eepublican  party,  among  whom 
were  Mr.  Seward  and  Mr.  Chase. 

The  last  Cabinet  of  General  Jackson,  on  the  con- 
trary, was  chiefly  composed  of  his  obsequious  in- 
struments. They  were  not  brought  to  his  notice 
by  their  prominent  position  before  the  country. 
Their  principal  title  to  his  recognition  was  an  at- 
tachment to  his  person  and  an  unhesitating  support 
of  his  cause.     But  never,  perhaps,  was  the  system 


IN  THE  UNITED  STATES.  85 

then  inaugurated  pushed  so  far  as  under  the  presi- 
dency of  General  Grant.  With  the  exception  of 
two  or  three,  whose  appointment  may  have  met 
the  wishes  of  the  party  which  elected  him,  the 
members  of  his  Cabinet  owed  their  elevation  to 
personal  favor  alone.  Whatever  may,  in  other 
respects,  be  thought  of  this  practice,  it  seems  to  be 
a  plain  violation  of  the  spirit,  if  not  the  letter,  of 
the  Constitution.  The  President  ought  to  be  sur- 
rounded by  able  and  experienced  men,  capable  of 
sharing  with  him  the  labors  of  the  government. 
The  Constitution  provides  that  "he  may  require 
the  opinion  in  writing  of  the  principal  officer  in 
each  of  the  executive  departments  upon  any  sub- 
ject relating  to  the  duties  of  their  respective  offices." 
This  clause  can  only  be  fully  carried  out  by  select- 
ing such  officers  from  among  the  most  eminent 
statesmen ;  for  when  the  complicated  and  arduous 
duties  devolving  upon  them  are  considered,  simply 
personal  friends  cannot  meet  its  requirements. 

The  practice  upon  another  point  is  far  from  uni- 
form. The  President  is  not  bound  to  ask  the 
opinion  of  his  advisers  upon  all  pending  questions. 
He  may  either  take  their  individual  views,  or  call 
them  together  for  consultation;  but  in  case  their 
united  opinions  are  contrary  to  his  own,  he  is  not 
obliged  to  conform  to  them.  In  such  a  case,  the 
secretaries  would  doubtless  be  justified  in  tendering 
their  resignations;  yet  the  rules  of  American  pub- 


S6  THE  EXECUTIVE  POWER 

He  life  do  not  make  such  an  extreme  course  impera- 
tive. They  may,  if  they  so  prefer,  submit  to  his 
will  and  quietly  retain  their  portfolios. 

In  general,  important  Cabinet  deliberations  are 
confidential.  It  is  therefore  very  difficult  to  ascer- 
tain exactly  the  relations  of  the  President  with  his 
secretaries.  Nevertheless,  aided  by  disclosures  that 
time  brings  about,  discoveries  are  occasionally  made 
of  the  manner  of  deciding  great  measures. 

Thus,  from  different  documents  relating  to  the 
presidency  of  Washington,  we  learn  how,  at  that 
period,  business  was  transacted  between  him  and 
his  Cabinet.  Such,  for  example,  is  John  Marshall's 
account  of  the  deliberations  when  the  neutrality 
policy  of  the  United  States  was  determined.  France 
had  just  declared  war  against  the  Enghsh  and  the 
Dutch.  What  attitude  ought  the  United  States  to 
assume?  A  question  of  the  gravest  import.  The 
President  wrote  immediately  to  Thomas  Jefferson, 
Secretary  of  State :  "  War  having  actually  com- 
menced between  France  and  Great  Britain,  it  be- 
hooves the  government  of  this  country  to  use  all  the 
means  in  its  power  to  prevent  the  citizens  thereof 
from  embroiling  us  with  either  of  these  powers, 
by  endeavoring  to  maintain  a  strict  neutrality.  I, 
therefore,  require  that  you  will  give  the  subject 
mature  consideration,  that  such  measures  as  shaU 
be  deemed  most  likely  to  effect  this  desirable 
purpose  may  be  adopted  without  delay " 


IN  THE  UNITED  STATES.  87 

Some  days  later,  the  President  addressed  to  the 
members  of  his  Cabinet  a.  circular  letter  submitting 
thirteen  questions.  They  met  and  upon  certain 
points  were  unanimous,  but  upon  others  they 
could  not  agree.  He  then  requested  a  written 
opinion  from  each  of  them.  Based  upon  these 
documents,  he  established  that  foreign  policy  which 
is  still  maintained  by  the  United  States.^ 

During  the  progress  of  the  war  of  secession  Mr. 
Lincoln  followed  a  very  different  practice.  Not- 
withstanding the  portentous  gravity  of  the  situa- 
tion, it  seems  that  he  very  seldom  called  a  Cabinet 
meeting,  with  a  view  of  asking  advice.  It  is  prob- 
able, for  instance,  that  without  previously  con- 
sulting them  upon  its  expediency,  he  read  to  his 
Cabinet  the  emancipation  proclamation  of  22d  of 
September,  1862,  which  embodied  and  gave  effect 
to  his  own  deliberate  views  and  purposes  upon  that 
momentous  question.  It  is  generally  thought  that 
he  pursued  the  same  course  with  regard  to  the 
second  proclamation  of  emancipation,  bearing  date 
1st  January,  1863.  It  appears  that,  when  he  com- 
municated it  to  his  Cabinet,  the  Secretary  of  the 
Treasury,  Mr.  Chase,  suggested  that  it  ought  to  con- 
tain some  sentence  less  technical  than  the  others,  and 
presenting  at  least  amoral  consideration  or  reflection. 
Mr.  Lincoln  proposed  to  Mr.  Chase  to  prepare  it, 

iLife  of  George  Washington^  by  John  MarshaU,  VoL  V.,  pp.  401- 
404. 


88  THE  EXECUTIVE  POWER 

whicli  he  did,  by  inserting  the  concluding  words  of 
that  memorable  document :  "  And  upon  this  act,- 
sincerely  believed  to  be  an  act  of  justice,  warranted 
by  the  Constitution  upon  military  necessity,  I  in- 
voke the  considerate  judgment  of  mankind  and  the 
gracious  favor  of  Almighty  God."  The  part  taken  by 
Mr.  Lincoln's  advisers  in  one  of  the  most  important 
decisions  of  the  age,  seems  to  have  been  limited  to 
drawing  up  this  felicitous  expression. 

At  the  very  moment  when  the  armies  of  the 
Union  triumphed  on  all  sides,  a  question,  almost  as 
weighty  as  that  of  emancipation,  was  forced  upon 
the  attention  of  Mr.  Lincoln.  It  was  necessary  to 
determine  the  policy  to  be  adopted  with  regard  to 
the  States  lately  in  rebellion.  Mr.  Stanton,  one  of 
the  most  distinguished  members  of  the  Cabinet, 
thus  related  before  a  congressional  committee  of 
inquiry  what  took  place  on  this  occasion :  "  Shortly 
previous  to  that  time  I  had  myself,  with  a  view  of 
putting  in  a  practicable  form  the  means  of  over- 
coming what  seemed  to  be  a  difficulty  in  the  mind 
of  Mr.  Lincoln  as  to  the  mode  of  reconstruction, 
prepared  a  rough  draft  of  a  form  or  mode  by 
which  the  authority  and  laws  of  the  United  States 

should  be  re-established In  the  course  of  that 

consultation  Mr.  Lincoln  alluded  to  the  paper, 
went  into  his  room,  brought  it  out,  and  asked  me 
to  read  it,  which  I  did,  and  explained  my  ideas  in 
regard  to  it." "I  was  requested  by  the  other 


IN  THE  UNITED  STATES.  89 

members  of  the  Cabinet,  and  by  Mr.  Lincoln,  to 
have  a  copy  printed  for  each  member  for  subse- 
quent consideration That  night  Mr.  Lincoln 

was  murdered.  Subsequently,  at  an  early  day,  the 
subject  came  under  consideration,  after  the  surren- 
der of  Johnston's  army,  in  the  Cabinet  of  Mr.  John- 
son. The  project  I  had  prepared  was  printed,  and 
a  copy  placed  in  the  hands  of  each  member  of  the 
Cabinet  and  the  President.  It  was  somewhat  altered 
in  some  particulars,  and  came  under  discussion  in 
the  Cabinet,  the  principal  point  of  discussion  being 
as  to  who  should  exercise  the  elective  franchise.  I 
think  there  was  a  difference  of  opinion  in  the  Cabi- 
net upon  that  subject.  The  President  expressed 
his  views  very  clearly  and  distinctly.  I  expressed 
my  views,  and  other  members  of  the  Cabinet 
expressed  their  views.  The  objections  of  the  Presi- 
dent to  throwing  the  franchise  open  to  the  colored 
people  appeared  to  be  fixed,  and  I  think  every 
member  of  the  Cabinet  assented  to  the  arransjement 
as  it  was  specified  in  the  proclamation  relative  to 
North  Carolina.  ^  After  that  I  do  not  remember 
that  the  subject  was  ever  again  discussed  in  the 
Cabinet."  2 

1  It  is  this  proclamation  that  determines  the  conditions  under 
which  the  Southern  States  were  to  be  re-admitted  into  the  Union. 
It  is  known  that  at  a  later  period  Congress  refused  to  approve  of 
this  plan  of  reconstruction. 

2 Impeachment  Investigation,  2d  Session,  39th  Congress,  and  Ist 
Session  40th  Congress,  1867,  p.  401. 


90 


THF  EXECUTIVE  POWER 


We  must  here  inquire  how  far  a  decision  of  the 
Cabinet  would,  under  certain  contingencies,  tend  to 
shield  the  President  from  responsibility.  Yery 
different  answers  have  been  made  to  this  question. 
A  distinction  can  moreover  be  established.  If  his 
political  responsibility  is  in  question,  it  is  evidently, 
under  the  Constitution,  devolved  exclusively  upon 
him.  Had  a  unanimous  written  opinion  on  any 
measure  been  obtained  from  his  Cabinet,  still  the 
people  would  none  the  less  consider  him  as  the  only 
author  of  it. 

Is  it,  on  the  contrary,  a  question  of  criminal  lia- 
bility ?  It  is  certain  that  a  President,  impeached 
for  an  act  suggested  or  explicitly  approved  by  his 
Cabinet,  can  always  plead  his  good  faith  in  the 
premises.  Let  •  us  suppose,  for  instance,  that  the 
interpretation  of  a  law  is  involved,  and  that  the 
Attorney -general,  to  whom  it  was  submitted,  gave 
a  written  opinion,  in  which  all  the  secretaries 
concurred..  The  President  can  always  allege  that 
he  with  good  motives  and  for  justifiable  ends  acted 
in  conformity  with  this  opinion,  although  it  is  of 
questionable  soundness.  Thus,  the  action  of  the 
Cabinet  may  in  certain  cases,  and  to  a  limited  extent, 
relieve  the  President  from  the  penal. consequences 
of  an  act  not  palpably  in  violation  of  the  law  of 
the  land. 

Such  is  the  organization  of  the  different  branches 
of  the  public  service  which  constitute  the  executive 


IN  THE  UNITED  STATES.  91 

department.  The  chief  magistrate  confides  the 
supervision  of  them  to  the  men  of  his  choice.  If 
they  are  prominent  members  of  his  party,  he  must 
neglect  nothing  to  secure  their  friendly  and  efficient 
co-operation.  Among  them  there  may  be  several 
presidential  aspirants,  and  one  of  the  principal 
difficulties  with  which  he  may  have  to  contend 
may  arise  from  this  source,  springing  up  in  the 
very  bosom  of  his  administration.  He  must  then 
judge  on  what  conditions  these  rival  candidates, 
who  are  in  such  close  official  relations  with  him, 
can  be  prevailed  on  to  subordinate  to  the  public 
interests  their  ambitious  personal  aims. 

Undoubtedly  the  President,  by  inviting  to  his 
Cabinet  obscure  personal  friends,  will  avoid  this 
danger.  He  must,  in  that  event,  be  a  superior,  self- 
relying  man,  conscious  of  his  power  to  master  at 
all  times  the  political  situation  ;  but  even  then  the 
selection  of  novices  for  advisers  is  an  experiment 
full  of  danger.  He  should  therefore  avoid  it,  and 
yet  the  history  of  the  United  States  furnishes  nu- 
merous precedents,  which  will  scarcely  encourage 
him  to  call  around  him  noted  political  personages. 
On  almost  every  page  will  be  found  traces  of  those 
internal  strifes  which  divided  the  Cabinets  of  his  pre- 
decessors. Very  often  intrigues  have  been  prompted 
by  the  desire  of  the  occupants  of  the  most  import- 
ant posts  to  gain  an  exceptional  place,  by  which 
they  may  attract  the  attention,  and  ultimately  se- 


92  THE  EXECUTIVE  POWER 

cure  the  suffrages  of  the  people.  As  the  term  is 
only  for  a  limited  period,  all  citizens  having  elevat- 
ed positions  may  aspire  to  the  chief  magistracy. 
Thus  restless  ambition  is  ever  at  work  and  every 
possible  candidate  on  the  alert.  Hence  unnumbered 
rivalries,  and  never-ceasing  combinations,  which 
embarrass  the  President  and  paralyze  his  power. 
In  his  own  Cabinet  are  often  his  most  dangerous 
adversaries,  and  it  requires  all  his  skill  and  patience 
to  submit  to  this  state  of  things,  which,  it  seems, 
exist  in  all  countries,  where  the  republican  system 
prevails. 

The  experience  of  a  republic,  already  acquired  by 
the  United  States,  permits  us  at  least  to  point  out 
the  defects  inherent  in  the  elective  system  as  applied 
to  the  chief  magistracy.  It  must  be  admitted  that 
they  are  not  so  sensibly  felt  in  the  constitution  of 
the  legislative  and  judicial  branches  of  the  gov- 
ernment, and  that  the  questions  relating  to  them 
were  solved  in  quite  a  satisfactory  manner  by  the 
convention  of  1787.  In  organizing  the  executive, 
that  body  had  often  to  run  counter  to  the  very  nature 
of  things,  and  could  do  no  better,  for  in  that  depart- 
ment are  found  the  defects  in  the  republican  system, 
for  which  no  efficient  remedy  has  yet  been,  or  can 
be  devised. 

It  was  necessary  to  confer  on  the  President  very 
extensive  powers  and  to  forbid  the  people  abridging 
their  duration,  and  at  the  same  time  to  avoid  the 


IN  THE  UNITED  STATES.  93 

formation  of  a  Cabinet  depending  for  its  existence 
upon  tlie  pleasure  of  Congress.  How  were  these 
propositions  to  be  reconciled  witb  the  principles  of 
political  responsibility.  It  must  then  be  sacrificed 
or  its  application  rendered  illusory.  It  was  impos- 
sible for  the  Legislature  to  avoid  creating  different 
executive  departments,  and  it  was  still  more  impos- 
sible to  withdraw  them  from  the  exclusive  control 
of  the  President.  He  must  therefore  put  at  the 
head  of  them  men  of  weight  and  influence  in  the 
country,  who,  in  most  instances,  will  aspire  to 
succeed  him,  and  who  will  very  often  embarrass 
his  administration ;  or  he  can  select  his  personal 
friends,  and,  in  that  event,  he  will  form  merely  a 
corps  of  clerks,  but  in  no  just  sense  a  Cabinet. 

Those  nations  who  aspire  to  a  republican  govern- 
ment should  carefully  reflect  upon  these  problems, 
which  have  not  been  hitherto  solved.  If,  as  every- 
thing leads  us  to  believe,  they  are  unable  to  give 
them  a  satisfactory  solution,  they  should  submit  to 
the  inconveniences  inseparable  from  an  elective 
regime.  There  is  scarcely  an  intelligent  man  in 
the  United  States  who  does  not  feel  them,  and  yet 
everybody  accepts  them — an  example  of  wisdom 
which,  for  more  than  eighty  years,  has  been  given 
by  the  American  people  to  those  nations  who  de- 
sire to  tread  in  their  footsteps. 


CHAPTER  ly. 

RELATIONS   OF   THE   PRESIDENT  TO   CONGRESS. 

ALTHOUGH,  as  we  have  seen,  neither  the  Pres- 
ident nor  the  principal  executive  agents  are 
politically  amenable  to  Congress,  neverthelessi 
as  one  of  the  ''  co-ordinate  "  branches  of  the  govern- 
ment, he  has  constant  relations  with  each  of  the 
others,  especially  the  legislative. 

In  taking  into  view  these  relations  it  must  not 
be  forgotten  that  the  political  party  which  elects 
the  President  has  almost  always  been  able  to  com- 
mand a  majority  in  the  House  of  Representatives 
of  the  first  Congress  which  meets  after  his  inau- 
guration. Matters  are  much  more  complicated  in 
regard  to  the  Senate.  As  it  is  a  permanent  body, 
of  which  one-third  of  the  members  are  biennially 
chosen,  more  than  that  number  cannot,  during  the 
year  of  the  presidential  election,  be  secured  in  any 
way  by  the  dominant  party.  So  decisive  a  result 
is,  indeed,  very  rarely  attained,  as  it  requires  a  ma- 
jority in  the  Legislature  of  each  State  in  whose 
senaljorial  delegation  there  is  a  vacancy  to  be  filled. 
A  party  must,  therefore,  be  in  the  ascendency  for 
manv  years  in  the  country  to  obtain  a  majority  in 
(04) 


IN  THE  UNITED  STATES.  95 

the  Senate.  That  body  seldom  makes  such  factious 
opposition  as  will  arrest  the  action  of  the  govern- 
ment, if  the  lower  house  concurs  with  the  President 
in  his  views  of  public  policy.  Should  he,  however, 
have  cause  to  expect  resistance  in  both  houses,  he 
has  none  the  less  a  right  to  propose  to  them  such 
legislation  as  he  deems  to  be  wise  and  just. 

As  a  matter  of  fact,  the  order  of  things  is  this : 
"  The  President,"  says  the  Constitution,  "  shall  from 
time  to  time  give  to  Congress  information  of  the 
state  of  the  Union,  and  recommend  to  their  consid- 
eration such  measures  as  he  shall  judge  necessary 
and  expedient."  In  performing  the  duty  thus  en- 
joined, he  sends  to  Congress  each  year,  at  the  open- 
ing of  the  session,  a  message  containing  as  well 
a  complete  exposition  of  his  policy,  as  a  statement  of 
the  condition  of  affairs,  and  suggesting  such  action 
as  the  public  service  seems  to  require.  It  is  accom- 
panied by  special  reports  of  almost  all  the  secreta- 
ries, who  recommend  in  general  the  passage  of  cer- 
tain laws,  and  transmit,  in  support  of  their  opinion, 
an  immense  mass  of  documents,  so  arranged  as  to 
fully  exhibit  all  the  details  of  the  administration. 
These  various  reports  are  intended  to  furnish  a 
complete  summary  of  the  situation.  The  first  ques- 
tion that  arises,  then,  is  whether  Congress  will  adopt 
the  measures  thus  submitted  to  it. 

Th^se   communications   are   soon  followed    by 


96  THE  EXECUTIVE  POWER 

others.^  Let  us  take,  for  example,  tliose  wliicTi 
relate  to  the  funds  required  for  carrying  on  the 
government.  The  documents  on  the  subject  are 
prepared  by  the  executive  departments  and  sub- 
mitted to  the  House.  As  the  appropriation  bills 
contain  from  eight  to  nine  hundred  items,  it  is  very 
natural  that  the  members  of  the  committee  charged 
with  the  duty  of  preparing  them  should  consider  it 
indispensable  for  them  to  be  fully  informed.  They 
hold  frequent  conferences  with  the  different  secre- 
taries, and  the  latter  furnish  the  requested  explana- 
tions, sometimes  by  writing,  but  in  most  instances 
orally,  as  special  inquiries  are  made.  Some- 
times the  chiefs  of  bureaus  perform  this  ofQce.  The 
money  bills  are  the  result  of  this  long  and  elabor- 
ate examination  and  interchange  of  views.  It  will 
thus  be  seen  that,  although  the  administration  is 
not  officially  represented  in  the  public  debates,  it 
participates  with  none  the  less  activity  in  the  pre- 
liminary preparations.  It  is  only  after  a  mutual 
agreement  between  the  members  of  the  Cabinet  and 
the  House  committee,  that  the  latter  report  the  bills 
which  have  been  prepared  after  a  severe  scrutiny 
and  by  their  common  consent.  When  the  House 
passes  them,  they  are  sent  to  the  Senate,  and  there 
referred  in  turn  to  the  appropriate  committee  or 
committees.     If  the  administration  is  not  satisfied 

1  If  Congress  is  organized,  the  budget  is  sometimes  laid  before 
the  appropriate  committee,  who  meet  ad  hoc  even  before  the  be- 
ginning of  the  session. 


IN  THE  UNITED  STATES.  97 

witli  the  sums  granted  bj  the  House,  it  may  en- 
deavor to  get  an  increase  from  the  Senate.  Here, 
also,  it  is  at  liberty  to  have  its  views  presented, 
and  things  take  very  much  the  same  course  as  they 
did  before  the  House. 

"What  has  just  been  stated  with  regard  to  the 
budget  applies  to  almost  all  laws  and  joint  resolu- 
tions discussed  during  the  session.  If  the  President 
at  any  time  thinks  that  Congress  ought  to  adopt  a 
measure,  he  can  send  a  special  message  recom- 
mending it.  On  the  contrary,  when  Congress  takes 
the  initiative  in  any  matters  which  may  affect  his 
administration,  he  has  the  right  to  present  his 
opinion  before  the  committee  to  which  they  have 
been  referred,  and  if  it  is  not  heeded,  he  may  invite 
his  friends  to  attack  the  measure,  and  to  say  that 
he  disapproves  it.  In  that  case  it  is  almost  always 
made  a  party  question  ;  involving  either  the  defeat 
or  the  success  of  the  administration.  If  he  prefers 
to  employ  other  means,  he  is  at  liberty  to  do  so ; 
he  may,  for  example,  invite  Senators  and  Repre- 
sentatives to  confer  with  him.  He  may,  also, 
instruct  a  member  of  his  Cabinet,  to  draw  up  a  bill, 
and  put  it  in  the  hands  of  a  member  of  either  House, 
who  will  introduce  it  in  his  own  name.  In  such 
case,  the  true  author  of  the  measure  will  be  generally 
known  or  at  least  suspected.  Those  who  are 
conversant  with  the  legislation  of  past  years  can 
7 


98  THE  EXECUTIVE  POWER 

mention  many  important  laws  prepared  and  drawn 
up  by  one  of  the  secretaries. 

The  relations  between  the  President  and  Congress 
are  also  affected  by  the  composition  of  his  Cabinet. 
In  the  latter  are  frequently  found  several  prominent 
ex-members  of  the  Senate  or  House.  These  parlia- 
mentary leaders,  in  withdrawing  from  Congress, 
maintain  their  personal,  and,  to  a  certain  degree, 
even  their  political  relations  with  their  former 
colleagues.  Secretaries  have  often  in  this  way 
continued  to  direct  the  political  party  to  which 
they  belong.  But  if,  as  he  is  permitted  to  do,  the 
President  prefers  to  isolate  hirnself  from  Congress, 
and  selects  his  counselors  from  dependents  and 
personal  friends  who  have  never  played  an  import- 
ant part  in  politics,  then  his  means  of  influence 
will  be  greatly  diminished ;  and  it  may  happen 
that  Congress  will  emancipate  itself  from  adminis- 
trative influence.  We  have  so  far  assumed  that  the 
friends  and  supporters  of  the  President  have  a  major- 
ity in  Congress  ;  should  they  on  the  contrary  be  in  a 
minority  in  one  or  both  Houses,  his  opponents  will 
then  limit  themselves  for  the  most  part  to  thwarting 
his  action ;  and  some  conflicts  may  even  break  forth. 
But  the  Constitution  co-ordinates  the  two  powers  in 
such  manner  that  the  people  will  soon  be  called  upon 
for  their  decision.  However,  before  affairs  proceed 
to  this  extremity,  he  is  clothed  with  a  power  which 
may  be  always  exercised  in  case  Congress  pass  such 


IN  THE  UNITED  STATES.  99 

bills  as  lie  considers  to  be  unconstitutional  or  dan- 
gerous. 

By  tbe  terms  of  the  Constitution,  "  Every  bill 
wbich  shall  have  passed  the  House  of  Eepresenta- 
tives  and  the  Senate  shall,  before  it  becomes  a  law, 
be  presented  to  the  President  of  the  United  States ; 
if  he  approve,  he  shall  sign  it;  but  if  not,  he  shall 
return  it,  with  his  objections,  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal,  and  proceed  to 
reconsider  it.  If,  after  such  reconsideration,  two- 
thirds  of  that  House  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  con- 
sidered, and,  if  approved  by  two-thirds  of  that 
House,  it  shall  become  a  law.  But  in  all  such  cases 
the  votes  of  both  Houses  shall  be  determined  by 
yeas  and  nays ;  and  the  names  of  the  persons  vot- 
ing for  and  against  the  bill  shall  be  entered  on  the 
journal  of  each  House  respectively.  If  any  bill 
shall  not  be  returned  by  the  President,  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the.  same  shall  be  a  law  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress, 
by  their  adjournment,  prevent  its  return,  in  which 
case  it  shfill  not  be  a  law." 

"  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Eepresen- 
tatives  may  be  necessary  (except  on  a  question  of 


lOO  THE  EXECUTIVE  POWER 

adjournment),  sliall  be  presented  to  the  President 
of  the  United  States "^ 

Thus  he  is  placed  under  one  of  the  following 
alternatives :  he  either  signs  a  bill,  in  which  case 
it  becomes  a  law,  or  he  withholds  his  approval  and 
returns  the  bill,  or  joint  resolution,  to  the  House 
in  which  it  originated,  with  a  message  setting  forth 
his  objections.  If  Congress  persists,  then  a  second 
vote,  requiring  a  two- thirds  majority  of  each  House 
to  be  efiectual,  must  be  taken.  Finally,  if  he 
does  not  fully  approve  a  legislative  act,  and  at  the 
same  time  does  not  think  it  requisite  so  to  return 
it,  he  may  refrain  from  either  course,  and  then, 
after  the  lapse  of  ten  days,  it  will  become  a  law. 
But  if  it  is  presented  to  him  toward  the  close  of 
the,  session,  so  that  he  has  not  the  full  period  for 
considering  it  given  by  the  Constitution,  then  his 
non-concurrence  is  fatal  to  its  validity.  He  may 
also  sign  it  under  protest.  Several  instance^,  of 
this  kind  are  recorded  in  the  legislative  history  of 
the.  United  States. 

It  is  proper  to  remark,  that  the  separate  action 
of  ojie  of  the  legislative  branches  may  morally  in- 
fluence, the  President,  but  it  has  no  legal  force  or 
efieot.  He  is  left  at  liberty  to  be  guided  by  this 
expression  of  opinion,  or  to  proceed  in  sucj|  course 
as  he  may  have  adopted.  In  the  session  of  1863- 
64,   for   example,    the  House   of  Eepresentatives 

1  Conatitation,  Article  1.,  Section  7. 


IN  THE  UNITED  STATES.  loi 

unanimously  adopted  a  resolution  protesting  against 
the  establishment  of  an  empire  in  Mexico,  in  favor 
of  an  Austrian  prince.  The  Senate,  with  the  view 
of  suppressing  the  question,  abstained  from  discuss- 
ing that  resolution.  The  French  authorities  were 
none  the  less  roused,  and  requested  an  explanation 
of  it.  The  Secretary  of  State  replied  by  disavow- 
ing any  responsibility  therefor  on  the  part  of  the 
government,  and  said  that  a  vote  of  the  House  of 
Representatives  or  of  the  Senate  could  neither 
coerce  the  executive  to  modify  its  policy,  nor  de- 
prive it  of  freedom  of  action.  This  matter,  in  the 
course  of  December,  1864,  came  before  the  House  of 
Representatives.  By  an  immense  majority  they  af- 
firmed their  right  to  advise  on  questions  of  foreign 
policy ;  but  this  declaration  does  not  a,ppear  to  have 
had  any  influence  on  the  course  of  the  administra- 
tion. 

The  motives  which  determined  the  framers  of 
the  Constitution  to  confer  on  the  executive  so  large 
a  legislative  authority,  are  explained  in  the  fol- 
lowing manner  by  the  authors  of  the  "Federalist:" 
"The  propensity  of  the  legislative  department  to 
intrude  upon  the  rights,  and  to  absorb  the  poweis 
of  the  other  departments,  has  been  already  suggested 
and  repeated  ;  the  insuffi.ciency  of  a  mere  parchment 
delineation  of  the  boundaries  of  each  has  also  been 
remarked  upon;  and  the  necessity  of  furnishing 
each  with  constitutional  arms  for  its  o\vn  defense 


102  THE  EXECUTIVE  POWER 

has  been  inferred  and  proved.  From  these  clear 
and  indubitable  principles,  results  the  propriety  of 
a  negative,  either  absolute  or  qualified,  in  the  ex- 
ecutive, upon  the  acts  of  the  legislative  branches. 
Without  the  one  or  the  other  the  former  would  be 
absolutely  unable  to  defend  himself  against  the  dep- 
redations of  the  latter.  He  might  gradually  be 
stripped  of  his  authority  by  successive  resolutions, 
or  annihilated  by  a  single  vote.  And  in  the  one 
mode  or  the  other  the  legislative  aud  executive 
powers  might  speedily  come  to  be  blended ^in  the 
same  hands,  if  even  no  propensity  had  ever  dis- 
covered itself  in  the  legislative  body  to  invade  the 
rights  of  the  executive  I  The  power  not  only 
serves  as  a  shield  to  the  executive,  but  it  furnishes 
an  additional  security  against  the  enaction  of  im- 
proper laws.  It  establishes  a  salutary  check  upon 
the  legislative  body  calculated  to  guard  the  com- 
munity against  the  effects  of  faction.  The  pro- 
priety of  a  negative  has,  upon  some  occasions,  been 
combatted  by  an  observation  that  it  was  not  to  be 
presumed  a  single  man  would  possess  more  virtue 
and  wisdom  than  a  number  of  men,  and  that  unless 
this  presumption  should  be  entertained,  it  would 
be  improper  to  give  the  executive  magistrate  any 
species  of  control  over  the  legislative  body.  The 
primary  inducement  to  conferring  the  power  in 
question  upon  the  executive  is  to  enable  him  to 
defend  himself;  the  secondary  one  is  to  increase 


IN  THE  UNITED  STATES.  103 

the  chances  in  favor  of  the  community  against  the 
passing  of  bad  laws  through  haste,  inadvertence 
or  design.  Nor  is  this  all.  The  superior  weight 
and  influence  of  the  legislative  body  in  a  free  gov- 
ernment, and  the  hazard  to  the  executive  in  trial 
of  strength  with  that  body,  afford  a  satisfactory 
security  that  the  negative  would  generally  be  em- 
ployed with  great  caution,  and  there  would  the 
oftener  be  room  for  a  charge  of  timidity  than  of 
rashness  in  the  exercise  of  it.  But  the  Con- 
vention has  pursued  a  mean  in  this  business 
which  will  both  facilitate  the  exercise  of  the  power 
vested  in  this  respect  in  the  executive  magistrate, 
and  make  its  efficacy  to  depend  on  the  sense  of  a 
considerable  part  of  the  legislative  body.  Instead 
of  an  absolute  negative,  it  is  proposed  to  give  the 
executive  the  qualified  negative  already  described. 
This  is  a  power  which  would  be  more  readily  exer- 
cised than  the  other.  A  man  who  might  be  afraid 
to  defeat  a  law  by  his  single  veto  might  not  scruple 

to  return  it  for  reconsideration He  would  be 

encouraged  by  the  reflection  that,  if  his  opposition 
should  prevail,  it  would  embark  in  it  a  very  re- 
spectable proportion  of  the  legislative  body,  whose 
influence  would  be  united  with  his  in  supporting 
the  propriety  of  his  conduct  in  the  public  opinion."  ^ 
The  considerations  which  decided  the  framers  of 
the  Constitution  to  adopt  the  compromise  of  a  quali- 

1  The  "  Federalist,"  p.  510  et.  seq. 


I04 


THE  EXECUTIVE  POWER 


fied  negative  were  for  the  most  part  just  and  sound  ; 
however,  after  an  experience  of  nearly  a  century, 
tlie  situation  has  •undergone  considerable  change. 

Although  the  veto  power  is  indispensable  to  the 
maintenance  of  the  executive  prerogatives,  it  is 
now  evident  that  its  exercise  may  lead  to  fierce 
antagonisms  full  of  disaster  to  the  country,  were  it 
not  for  the  frequent  recurrence  of  elections,  by 
which  the  people,  the  ultimate  source  of  power ^ 
can  decide  the  matters  in  controversy. 

The  10th  July,  1832,  President  Jackson  returned 
to  the  Senate  the  bill  re-chartering  the  Bank  of  the 
United  States.  Without. here  entering  on  the  de- 
tails of  this  affair,  in  which  the  most  violent  pas- 
sions of  both  parties  were  enlisted,  it  suffices  to 
say  that  he,  the  acknowledged  head  of  the  Demo- 
cratic party,  was,  on  this  occasion,  in  opposition  to 
the  Whigs,  then  led  by  Mr.  Webster  and  Mr.  Clay, 
and  commanding  a  considerable  majority  in  the 
Senate.  In  his  memorable  veto  message  the  Presi- 
dent said : 

"The  Congress,  the  executive  and  the  court 
must  each  for  itself  be  guided  by  its  own  opinion 
of  the  Constitution.  Each  public  officer,  who  takes 
an  oath  to  support  the  Constitution,  swears  that  he 
will  support  it  as  he  understands  it  and  not  as  it  is 
understood  by  others.  It  is  as  much  the  duty  of 
the  House  of  Eepresentatives,  of  the  Senate  and 
of  the  President  to  decide  upon  the  constitutionality 


IN  THE  UNITED  STATES. 


los 


of  any  bill  or  resoluti<5n  which  may  be  presented 
to  them  for  passage  or  approval,  as  it  is  of  the  su- 
preme judges,  when  it  may  be  brought  before  them 
for  judicial  decision.  The  opinion  of  the  judges 
has  no  more  authority  over  Congress  than  the  opin- 
ion of  Congress  has  over  the  judges,  and  on  that 
point  the  President  is  independent  of  both."  ^ 

These  propositions  could  not  be  seriously  contro- 
verted by  the  Whig  leaders.  All  their  skill  was 
exerted  in  shaping  the  issues  to  be  presented  to  the 
people  at  the  then  approaching  election.  They 
knew  that  in  the  then  condition  of  parties  it  was 
impossible  to  carry  the  measure .  over  the  veto ; 
but  they  relied  upon  a  favorable  verdict  from  that 
sovereign  power  whose  decision  in  the  last  resort 
was  about  to  be  invoked.  They  were  deceived  in 
their  expectations.  In  the  following  November 
the  President  was  re-elected  by  an  overwhelming 
majority. 

From  the  administration  of  General  Jackson  to 
that  of  Mr.  Johnson  several  Presidents  exercised 
the  veto  power,  and  with  but  one  exception  the 
measures  thus  returned  to  Congress  could  not  be 
passed  a  second  time. 

Under  Mr.  Johnson  affairs  assumed  a  different 
aspect;    but  we    must    note  how  very   peculiar 

1  See  Thirtj^  Years'  View,  Vol.  I.,  p.  251  et  seq.  See  also  the  mes- 
sage accompanying  the  President's  veto,  in  Presidents'  Messages, 
p.  418  et  seq. 


io6  THE  EXECUTIVE  POWER 

was  tlie  then  existing  sifuation,  and  not  ascribe 
undue  importance  to  the  occurrences  of  his  admin- 
istration, nor  draw  too  positive  conclusions  from 
them.  Certainly,  if  a  "Vice-president,  suddenly 
placed  at  the  head  of  the  government,  was  satisfied 
with  the  simple  fulfillment  of  his  duties,  without 
attempting  to  impress  his  peculiar  views  upon  the 
public  mind  or  control  the  political  action  of  the 
country,  he  would  probably  avoid  angry  controver- 
sies. But  this  was  not  the  case  with  Mr.  Johnson. 
An  obstinate  will,  a  very  narrow  intellect,  and 
perhaps  also  the  violence  of  ardent  convictions, 
prompted  him,  in  the  crisis  through  which  the 
country  was  passing,  to  assume  an  attitude  well 
fitted  to  excite  resentment  and  opposition.  Con- 
gress had  compact  Kepublican  majorities,  with 
skillful  and  determined  leaders.  Under  such 
circumstances  a  struggle  was  inevitable.  So  Con- 
gress had  not  been  in  session  one  hour  before 
the  quarrel  commenced  (first  Monday  of  Decem- 
ber, 1865) ;  and  it  continued,  without  intermission, 
until-  March  4th,  1869,  when  he  was  succeeded  by 
Grant.  During  that  time  he  vetoed  all  the  political 
measures  of  Congress,  and  the  latter  almost  always 
passed  them  the  second  time,  notwithstanding  his 
opposition.  However,  it  must  not  be  thought  that, 
under  these  altogether  exceptional  circumstances, 
the  majorit}^  in  each  House  were  free  from  doubt 
or  acted  without  hesitation.     The  first  veto  of  Mr. 


IN  THE  UNITED  STATES.  io7 

Joliason  was  sustained  by  the  Senate,  to  which  he 
had  transmitted  the  message  giving  his  objections. 
Some  weeks  later  he  pursued  the  same  course  with 
regard  to  another  bill,  when  a  violent  contest  took 
place  in  the  Senate,  which  was  prolonged  through 
many  sessions.  Up  to  the  last  m.oment  the  result 
of  the  vote  was  uncertain,  and  it  was  with  great 
difficulty  that  the  RepubHcan  party  could  unite  the 
requisite  majority  of  two-thirds.  But  this  bill, 
having  been  passed  over  the  veto,  the  decisive  step 
was  taken.  Then,  in  the  name  of  tlie  public  wel- 
fare, it  was,  in  the  opinion  of  Congress,  expedient 
and  necessary  to  restrain  the  power  of  the  Presi- 
dent by  legislative  acts. 

It  might  be  supppsed  that  by  reason  of  these  con- 
flicts the  Constitution  would  be  modified,  the  inde- 
pendence of  the  executive  permanently  afiected, 
and  the  legislative  authority  rendered  supreme. 
Such  were  in  effect  the  consequences  involved 
when  the  House  of  Representatives  impeached  the 
President,  and  sent  him  before  the  Senate  for  trial. 

In  another  part  of  this  work  will  be  found  an 
analysis  of  the  principal  points  raised  by  this  trial, 
but  it  must  be  here  remarked  how,  on  this  solemn 
occasion,  the  counsel  of  Mr.  Johnson  claimed  in  his 
name  the  right  to  interpret  the  sense  and  determine 
the  scope  of  a  statute.  They  argued  that,  charged 
with  the  faithful  execution  of  the  laws,  he  could 
not  perform  this  arduous  duty  otherwise  than  by  a 


io8  THE  EXECUTIVE  POWER 

vigilant  supervision  of  the  subordinate  officers,  by 
whose  instrumentality  he  acted.  In  the  attainment 
<5f  this  end  he  must  exercise  the  right  of  interpre- 
tatien.  Now,  if  he  is  doubtful  as  to  the  meaning  of 
any  provision,  he  has  then  the  privilege  of  taking 
the  advice  of  the  members  of  his  Cabinet.  His 
constitutional  oath  obliges  him  not  only  to  execute 
the  laws,  but  also  to  support  the  Constitution  itself, 
and  this  great  trust  implies  the  exercise  of  a  large 
discretion.  This  doctrine,  added  one  of  the  ablest 
advocates  of  Mr.  Johnson,  has  been  sustained  by 
the  decisions  of  the  Supreme  Court,  affirming  that, 
in  the  administration  of  the  laws,  the  President 
was  not  a  simple  ministerial  officer,  but  that  he 
exercised  executive  and  political  functions.  He 
had  then  a  certain  freedom  of  action  that  Con- 
gress could  not  rightfully  restrain.  ^  This  opinion 
is  constitutional.  The  acquittal  of  President  John- 
son soon  proved  tbat,  even  in  extreme  cases,  the 
Legislature  sbould  confine  its  attacks  within  the 
certain  limits  ordained  by  the  Constitution. 

Moreover,  the  contest  could  not  be  carried 
further  ;  and  in  fact,  at  the  very  time  when  the 
Senate  decided  the  fate  of  Mr.  Johnson,  the  "Repub- 
lican National  Convention  met  at  Chicago,  and  nom- 
inated General  Grant  for  the  presidency.  Without 
openly  disavowing  the  policy  which  had  led  Con- 
gress  to   impeach   Mr.  Johnson,   the   Republican 

1  Impeachment  Trial,  Mr.  Stanberry's  argument,  pp.  773-74. 


IN  THE  UNITED  STATES.  109 

party  showed  by  its  attitude  that  matters  could 
not  be  pushed  to  the  last  extremity.  A  reaction 
in  the  country  was  manifestly  taking  place.  Thts 
people  were  about  to  appear  on  the  scene,  and  in 
their  turn  judge  the  judges.  As  might  have  been 
expected,  when  the  nation  called  General  Grant  to 
preside  over  its  destinies,  the  natural  balance  of 
powers  was  re-established.  After  his  inauguration 
he  regained,  in  a  few  months,  almost  as  a  matter  of 
course,  nearly  all  the  ground  lost  by  his  predeces- 
sor. At  the  present  day  the  presidential  authority 
is  perhaps  relatively  stronger  than  when  General 
Jackson  left  office. 

Thus  the  American  Executive  Power  has  been 
able  to  sustain  itself  throughout  the  most  critical 
periods,  and,  aside  from  the  occasional  instances 
when  the  Vice-president  exercised  its  functions, 
has  triumphed  in  every  contest  between  it  and 
Congress. 

And  it  is  well  here  to  observe,  that  the  frequency 
of  elections  always  permits  the  masses  to  intervene 
seasonably  and  to  proclaim  their  will.  It  may  be 
thought  dangerous,  perhaps,  to  rpmit  to  them  the 
final  judgment  of  such  delicate  questions.  In  the 
United  States,  however,  the  verdicts  of  the  nation 
are  in  general  sound  and  prudent.  The  public  con- 
science is  not  deadened  or  perverted  by  party  spirit. 
The  people  calmly  investigate  and  wisely  deter- 
mine.    In  a  republic  the  soverignty  must  be  effeo- 


no  THE  EXECUTIVE  POWER 

tively  exercised  by  them.  Congress  and  the  Presi- 
dent himself  are  to  be  considered  as  their  delegates, 
and,  in  a  certain  sense,  their  agents,  or,  as  General 
Grant  expressed  it  in  one  of  his  happiest  inspira- 
tions, "  This  country  is  a  republic,  where  the  will 
of  the  people  must  be  obeyed." 

If  the  presidential  term  were  prolonged  two 
years  the  nation  would  not  be  deprived  of  the 
right  to  express  its  opinion.  In  fact  the  House  of 
Representatives  would  continue  to  be  integrally 
renewed  as  it  has  been,  and  the  Senate  would  become 
entirely  so,  during  this  period  of  six  years.  The 
people  could  express  their  approval  or  disapproval, 
by  sending  to  the  House  or  the  Senate  friends 
or  opponents  of  the  policy  of  the  President,  and  at 
the  same  time  the  local  elections  enable  them  to 
declare  their  opinions,  which,  if  he  is  wise,  he  will 
carefully  heed. 

It  has  now  been  shown  in  what  way  the  Execu- 
tive Power  "forms  a  co-ordinate  branch  of  the  gov- 
ernment," how,  as  such,  it  intervenes  in  legislative 
questions,  and  how  its  action  is  felt  in  all  the 
phases  through  which  a  bill  or  resolution  must 
pass  in  order  to  become  eventually  a  law.  It  re- 
mains to  be  seen  why  the  President  is  independent 
of  Congress. 

We  must,  in  the  first  place,  observe  that,  except 
by  way  of  impeachment^  the  legislative  power  has 
no  constitutional  means  of  reaching  the  President. 


IN  THE  UNITED  STATES.  m 

One  of  tlie  most  distingaished  members  of  the 
Philadelphia  convention,  Koger  Sherman,  advocated 
in  that  assembly  the  theory  that  the  executive 
magistracy  should  be  instituted  for  the  sole  purpose 
of  doing  the  behests  of  the  Legislature ;  that  it  should 
be,  elected  by  and  be  responsible  to.  Congress — in  a 
word,  that  the  latter  ought  to  be  the  representative 
and  exponent  of  the  supreme  will  of  the  country. 
He  therefore  proposed  that  it  should  be  vested  with 
the  power  of  organizing  the  executive  in  the  man- 
ner which  it  might  deem  the  most  advantageous.^ 
But,  as  we  have  seen,  this  opinion  found  ho  favor 
in  the  convention.  It  decided  that  the  President 
should  be  independent  of  the  Legislature.  The  latter, 
then,  cannot  in  reality  attack  this  independence  with- 
out violating  the  Constitution,  and  if  it  hesitated  to  go 
that  far,  it  would  speedily  feel  its  own  impotency. 

This  question  was  first  presented  at  the  moment 
of  General  Jackson's  re-election  by  an  immense 
majority.  Although  this  re-election  had  notably 
affected  the  composition  of  the  House  of  Represen- 
tatives, the  Whigs  still  had  a  majority  in  the  Sen- 
ate, and  they  also  found  allies  in  Senator  Calhoun 
and  his  personal  friends.  Thus  the  violent  con- 
test, commenced  under  the  first  administration  of 
General  Jackson,  was  continued  after  his  re-elec- 
tion. It  then  assumed  a  new  phase.  Mr.  Clay, 
the  leader  of  the  coalition,  taking  advantage  of  a 

1  The  Madison  Papers,  Vol.  II.,  p.  763. 


112  THE  EXECUTIVE  POWER 

supposed  favorable  circamstance,  offered  in  the 
Senate  a  resolution  censuring  the  President,  which, 
after  long  debates,  was  adopted  by  a  vote  of  26  to 
20.  General  Jackson  answered  by  protesting. 
This  rigid  defender  of  the  Execative  Power  thus 
proved  that  this  high  assembly  had  exceeded  its 
rightful  authority. 

"  That  the  Senate,"  said  he,  "  possesses  a  high  j  u- 
dicial  power,  and  that  instances  may  occur  in  which 
the  President  of  the  United  States  will  be  amen- 
able to  it,  is  undeniable.  But  under  the  provi- 
sions of  the  Constitution  it  would  seem  to  be 
equally  plain  that  neither  the  President  nor  any 
other  officer  can  be  rightfully  subjected  to  the 
operation  of  the  judicial  power  of  the  Senate, 
except  in  the  cases  and  under  the  forms  prescribed 
by  the  Constitution.  The  "Constitution  declares 
that  the  President,  Yice-president,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for  and  conviction  of  trea- 
son, bribery,  and  other  high  crimes  and  misdemean- 
ors. That  the  House  of  Representatives  shall  have 
the  sole  power  of  impeachment.  That  the  Senate 
'shall  have  the  sole  power  to  try  all  impeach- 
ments.' That,  '  when  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.'  That  '  when  the 
President  of  the  United  States  is  tried,  the  Chief 
Justice  shall  preside.'     That  'no  person  shall  be 


IN  THE  UNITED  STATES.  113 

convicted  without  the  concurrence  of  two-thirds  of 
the  members  present ' 

"  The  resolution  above  quoted,"  continues  Gen- 
eral Jackson,  "  charges  in  substance  that  in  certain 
proceedings  relating  to  the  public  revenue  the 
President  has  usurped  authority  and  power  not 
conferred  upon  him  by  the  Constitution  and  laws, 
and  that  in  doing  so  he  violated  both.  Any  such 
act  constitutes  a  high  crime — one  of  the  highest 
indeed  which  the  President  can  commit — a  crime 
which  justly  exposes  him  to  impeachment  by  the 
House  of  Representatives,  and  upon  due  conviction 
to  removal  from  office." 

But  even  admitting  the  Senate's  right  to  pass  this 
vote  of  censure,  it  could  do  nothing  more.  It  had 
no  means  of  forcing  the  President  in  his  strong- 
hold. It  was  therefore  constrained  to  confine  its 
further  action  to  a  refusal  to  receive  his  protest  in 
answer.  On  the  other  hand  his  friends  at  once 
went  to  work.  The  Senator  who  particularly 
represented  the  ideas  of  the  administration,  imme- 
diately announced  that  he  should  propose  not  only 
to  rescind  the  resolution,  but  even  ta  expunge  it 
from  the  journal.  To  this  end  he  soon  after  made 
a  motion  in  due  form.  It  was,  of  course,  at  first 
rejected  by  the  same  majority  that  had  adopted 
the  resolutioii ;  but  the  popular  reaction  in  favor 
of  General  Jackson  continued  to  increase,  and  at 
the  succeeding  partial  renewal'  of  the  Senate  a 
8 


114  ^^-^  EXECUTIVE  POWER 

majority  of  the  members  elected  were  found  to  be 
devoted  to  bim .  Finally,  three  years  after  -  he 
had  been  censured,  the  expunging  resolution  was 
adopted.  At  that  moment  a  Senator  rose  and  said, 
that  it  only  remained  to  execute  at  once  the  order 
of  the  Senate. 

"The  Secretary  thereupon  produced  the  original 
manuscript  journal  of  the  Senate,  and  opening  at 
the  page  which  ccmtained  the  condemnatory  sen- 
tence of  March  28th,  1834,  proceeded  in  open  Sen- 
ate to  draw  a  square  of  broad  black  lines  around 
the  sentence,  and  to  write  across  its  face  in  strong 
letters  these  words :  '  Expunged  by  order  of  the 
Senate,  this  16th  day  of  March,  1837.'"  ^ 

Thus  General  Jackson  came  victorious  out  of 
this  struggle.  Without  pronouncing  a  judgment 
upon  his  character,  which  cannot  yet  be  done  with 
entire  impartiality,  it  suffices  to  remark  that  dur- 
ing his  two  terms  the  Executive  Power  was  main- 
tained in  its  plentitude,  and  that  he  achieved  this 
signal  success  by  his  energy  in  defending  his  con- 
stitutional prerogatives. 

Since  then  Congress  has  had  many  contests  with 
the  President.  It  has  not  in  the  main  gained  more 
over  him,  than  he  has  over  it.  In  fact,  that  branch 
of  the  Government  which  seeks  to  attack  the  other 
cannot  do  so,  in  the  greater  number  'of  instances, 
without  exceeding  the  limits  of  the  Constitution. 

1  Thirty  Years'  View,  Vol.  I.",  p.  730. 


IN  THE  UNITED  S  TA  TES.  1 1 5 

The  framers  of  the  Constitution  so  effectually 
guarded  the  independence  of  the  executive,  that 
Congress  has  not  been  able  to  deal  it  fatal  blows. 
Upon  the  whole,  the  prerogatives  of  the  President 
are  to  day  nearly  what  they  were  in  the  time  of 
Washington ;  they  have  even  been  rather  increased 
than  diminished. 

.The  "  Federalist "  observed  that  the  legislative 
power  always  tended  to  intrench  upon  the  other 
branches  of  the  government,  and  if  feared  that  the 
President  could  not  resist  its  attacks.  These  fears 
were  ill-founded ;  at  least  the  danger  was  exagger- 
ated. Elected  by  the  people,  the  first  magistrate  of 
the  republic  sways  the  popular  mind  with  that 
natural  ascendency  which  a  living  and  acting  per- 
sonality exercises  over  the  masses.  They  behold 
in  him  thein  direct  representative.  Congress,  on 
the  contrary,  appears  to  them  as  a  kind  of  ab- 
straction, and  in  a  contest  their  instincts  lead  them 
to  sustain  him.  It  must,  then,  be  under  very  ex- 
ceptional conditions  that  they  will  do  violence  to 
their  inclinations  and  give  their  support  to  Con- 
gress when  opposed  to  him. 


CHAPTER  y. 

THE   POWER   OF   DECLARING  WAR. 

WE  cannot  here  refrain  from  presenting  sonie 
considerations  on  tlie  province  assigned  by 
the  Constitution  to  the  Legislative  and  the 
Executive  Power  in  questions  concerning  peace  and 
war. 

At  their  session,  August  17th,  1787,  the  conven- 
tion discussed,  for  the  first  time,  that  portion  of  the 
draft  of  the  Constitution  in  which  this  grave  prob- 
lem was  placed.  The  most  contradictory  opinions 
were  in  turn  advanced.  It  was  proposed  to  confer 
on  the  Legislature  the  power  "  to  make  war."  Two 
members  of  the  convention  asked  that  the  word 
''^declare''''  should  be  substituted  for  "maZ:e";  for  in 
this  way,  said,  they,  the  executive  would  be  in  a 
position  to  repel  any  sudden  attack. 

This  motion  having  been  adopted  by  an  almost 
unanimous  vote,  it  followed  that  the  power  of 
declaring  war  was  confided  to  the  legislature, 
whilst  the  convention  remitted  to  the  President 
and  Senate  that  of  making  peace.^     The  temper  of 

1  The  Madison  Papers,  Vol.  III.,  p.  1551  ei.  seq. 
(116) 


IN  THE  UNITED  STATES.  117 

the  convention  was  eminently  pacific,  and  opposed 
to  invasion  and  conquest.  As  was  said  in  debate, 
the  members  of  that  assembly  desired  to  make  it 
more  difficult  to  declare  war  than  to  conclude  a 
treaty  of  peace. 

In  commenting  upon  these  constitutional  provi- 
sions,   the  Supreme  Court  of  the  United  States- 
has  expressed  itself  in  the  following  manner : 

"But  the  genius  and  character  of  our  institutions 
are  peaceful,  and  the  power  to  declare  war  was  not 
conferred  upon  Cong'ress  for  the  purposes  of  aggres- 
sion or  aggrandizement,  but  to  enable  the  general 
government  to  vindicate,  by  arms,  if  it  should  be- 
come necessary,  its  own  rights  and  the  rights  of  its 
citizens." 

"A  war,  therefore,  declared  by  Congress,  can 
never  be  presumed  to  be  waged  for  the  purpose  of 
conquest  or  the  acquisition  of  territory."  ^ 

At  the  same  time  that  the  convention  gave  to 
the  legislature  the  war-declaring  power,  it  chose 
to  reserve  to  the  President  the  duty  of  repel- 
ling all  attacks  which  might  come  either  from 
abroad  or  at  home ;  it  also  wished  to .  enable 
him  to  act  without  delay,  a  precaution  worthy  of 
praise,  the  wisdom  of  which  was  justified  by  the 
events  of  the  Spring  of  18^1.  This  contingency 
occurred  at  the  moment  when  Fort  Sumter  fell 
into  the  hands  of  the  insurgent  forces.     President 

2  See  Heming  vs.  Page,  9  Howard,  p.  614. 


Ii8  THE  EXECUTIVE  POWER 

Lincoln,  without  loss  of  time,  issued  his  proclama- 
tion, April  16,  1861,  calling  forth  the  militia  of  the 
several  States  to  the  aggregate  number  of  75,000, 
and  convening  an  extraordinary  session  of  Congress. 
Four  days  later,  19  th  April  following,  he  declared 
the  blockade  of  the  southern  ports.  Thus  the  power 
of  declaring  war,  of  summoning  the  militia  to  arms, 
and  of  blockading  ports,  which  the  Constitution 
appeared  to  grant  to  Congress  alone,*  was  exer- 
cised by  him. 

At  first  sight,  nothing  would  seem  more  illegal, 
and  yet,  not  only  did  Congress  ratify  the  action  of 
the  President,  but  the  Supreme  Court  also  ex- 
plained, in  an  important  decision,  why  he,  in  thus 
taking  the  initiative,  had  only  exercised  the  power 
conferred  upon  him. 

"  As  a  civil  war,"  said  the  Supreme  Court,  "  is 
never  publicly  proclaimed,  eo  nomine^  against  in- 
surgents, its  actual  existence  is  a  fact  in  our  do- 
mestic history  which  the  court  is  bound  to  notice 
and  to  know." 

"  The  true  tests  of  its  existence  are  found  in  the 
writings  of  the  sages  of  the  common  law,  and  may 
be  thus  summarily  stated:  'When  the  regular 
course  of  justice  is  interrupted  by  revolt,  rebellion, 
or  insurrection,  so  that  the  courts  of  justice  cannot 
be  kept  open,  civil  war  exists,  and  hostilities  may  be 
prosecuted  on  the  same  footing  as  if  those  opposing 


IN  THE  UNITED  STATES.  119 

the  government  were  foreign  enemies  invading  the 
land.' " 

"  By  the  Constitution,"  adds  the  Supreme  Court, 
"  Congress  alone  has  the  power  to  declare  a  national 
or  foreign  war.*  It  cannot  declare  war  against  a 
State,  or  any  number  of  States,  by  virtue  of  any 
clause  in  the  Constitution.  The  Constitution  confers 
on  the  President  the  whole  Executive  Power.  He 
is  bound  to  take  care  that  the  laws  be  faithfully 
executed.  He  is  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual  ser- 
vice of  the  United  States.  He  has  no  power  to 
initiate  or  declare  a  war  cither  against  a  foreign 
nation  or  a  domestic  State.  But  by  the  acts  of 
Congress  of  February  28th,  1795,  and  March  3d, 
1807,  he  is  authorized  to  call  out  the  militia  and 
use  the  military  and  naval  forces  of  the  United 
States  in  case  of  invasion  by  foreign  nations,  and  to 
suppress  insurrection  against  the  government  of  a 
State  or  of  the  United  States." 

"If  a  war  be  made  by  invasion  of  a  foreign  i;ia- 
tion  the  President  is  not  only  authorized  but  bound 
to  resist  force  by  force.  He  does  not  initiate  the 
war,  but  is  bound  to  accept  the  challenge  without 
waiting  for  any  special  legislative  authority.  And 
whether  the  hostile  party  be  a  foreign  invader,  or 
States  organized  in  rebellion,  it  is  none  the  less  a 
war,  although   the  declaration  of  it   be    '  unilate- 


I20  THE  EXECUTIVE  POWER 

ral.' "  Lord  Stowell  observes:  "  It  is  not  tlie  less 
a  war  on  that  account,  for  war  may  exist  without. 
a  declaration  on  either  side.  It  is  so  laid  down 
by  the  best  writers  on  the  law  of  nations.  A  de- 
claration of  war  by  one  country  only  is  not  a  mere 
challenge  to  be  accepted  or  refused  at  pleasure  by 
one  country  only" and  further  on,  the  Su- 
preme Court,  continuing  the  same  argument,  says: 
"If  it  were  necessary  to  the  technical  existence 
of  a  war  that  it  should  have  a  legislative  sanc- 
tion, we  find  it  in  almost  every  act  passed  at  the 
extraordinary  session  of  the  Legislature  of  1861 
"Without  admitting  that  such  an  act  was  nec- 
essary under  the  circumstances,  it  is  plain  that  if 
the  President  had  in  any  manner  assumed  powers 
which  it  was  necessary  should  have  the  authority 

or  sanction  of  Congress this  ratification  has 

operated   to   perfectly   cure   the   defect We 

are  of  opinion  that  the  President  had  a  right,  jure 
helli^  to  institute  a  blockade  of  ports  in  possession 
of  the  States  in  rebellion."  ^ 

The  doctrine  announced  by  the  Supreme  Court 
may,  then,  be  summed  up  as  follows  :  The  Legis- 
lature has  the  power  to  declare  war,  but  it  should 
never  be  aggressive;  the  United  States  should 
limit  itself  to  the  defensive,  and  cause  the  rights 

1  Claimants  of  Schooners  Brillant,  Crushaw,  Bark  Hiawatha 
and  others,  .vs.  The  United  States,  9th  March,  1S«9.  Black's  Re- 
ports,  Vol.  II.,  pp.  (>65  et  seq. 


IN  THE  UNITED  STATES.  121 

of  American  citizens  to  be  respected  abroad ;  and, 
on  the  other  hand,  if  the  Union  is  attacked,  the 
President  should  take  all  necessary  measures  to 
defend  the  country. 

"When  the  framers  of  the  Constitution  vested  in 
Congress  exclusively  the  power  to  declare  war,  their 
thought  might  seem  to  be  as  just  as  their  inten- 
tions were  wise.  They  appeared  to  foresee  the 
terrible  influence  of  that  "spirit  of  conquest  and 
usurpation"  which  was  about  to  break  forth  in 
Europe  with  unexampled  violence.  Opposed  as 
they  were  to  aggressive  war,  they  used  many  precau- 
tions to  forestall  its  fatal  consequences.  However, 
when  the  means  to  which  they  had  recourse  are 
considered,  we  may  question  if  they  were  not  labor- 
ing under  illusions.  In  fact,  according  to  the 
terms  of  the  judicial  decision  just  cited,  a  President 
who  conducts  affairs  with  a  foreign  power,  so  as 
skillfully  to  lead  it  to  attack  the  United  States,  can 
always  engage  the  action  of  the  country  and  inau- 
gurate defensive  war. 

If  the  American  republic  has,  in  the  course  of 
its  history,  almost  constantly  manifested  a  pacific 
disposition,  it  cannot  be  attributed  to  the  constitu- 
tional article  relating  to  the  war-power.  The 
progress  of  this  work  will  show  how  a  foreign 
policy  was  established  in  the  United  States  cal- 
culated to  moderate  a  spirit  of  aggression.  But 
the  credit  of  having  inaugurated  and  maintained 


122  THE  EXECUTIVE  POWER 

it  is  principally  due  to  the  Presidents,  and  it  is 
at  least  doubtful  if  Congress  would  have  evinced 
similar  wisdom.  However  that  may  be,  it  is 
important  to  remark  the  interpretation  given 
by  the  Supreme  Court  and  by  Congress  itself  to 
the  constitutional  clause  in  question.  On  the 
President  is  enjoined  the  high  duty  of  watching 
over  the  maintenance  of  the  Union.  He  will, 
therefore,  repell  foreign  invasion  and  suppress 
domestic  insurrection  without  awaiting  the  in- 
structions of  Congress.  In  a  word,  his  remaining 
on  the  defensive  is  all  that  is  required  to  author- 
ize him  to  act.  Possessing  such  powers,  a  Presi- 
dent, animated  with  a  war-like  spirit,  is  always  able 
to  initiate  hostilities.  In  studying  the  diplomacy 
of  other  nations,  it  would  not  be  difficult  for  him 
to  find  numerous  precedents,  and  to  learn  the  art 
of  inviting  an  attack,  when,  in  reality,  he  would  be 
the  aggressor.  The  issue  once  made,  the  honor  of 
the  nation  once  at  stake,  patriotic  sentiments  would 
be  excited  in  the  United  States  probably  sooner 
than  elsewhere,  and  the  constitutional  guaranty, 
which  intrusts  to  the  Legislature  exclusively  the 
power  of^  declaring  war,  would  thus  become  an 
empty  phrase,  signifying  nothing. 

We  thus  perceive  that  the  President  has,  in  most 
all  questions  of  foreign  policy,  a  very  large  con- 
trol. The  Constitution  attempted,  without  doubt, 
to  restrict  it-  within  narrower  limits :  but  custom 


y 


IN  THE  UNITED  STATES  123 

has  constrained  legislators  as  well  as  judges  to  give 
to  these  clauses  an  interpretation  generally  favorable 
to  his  authority.  The  latter  has  been  augmented 
and  confirmed  by  the  trials  to  which  it  has  been 
subjected.  Ought  the  United  States  to  regret  that 
such  is  the  case  ?  It  is  impossible  to  think  so.  The 
President  really  comes  from  the  people.  He  is 
their  representative,  and  is  more  fully  sustained 
by  public  opinion  than  by  legislative  assemblies. 
Nor  must  we  forget  that  such  bodies  are,  by  the 
nature  of  things,  more  liable  than  he  to  be  con- 
trolled by  transitory  impressions.  The  reader  who 
desires  to  convince^  himself  of  this  fact,  has  only  to 
glance  at  the  resolutions  relative  to  foreign  policy, 
adopted  by  the  House  of  Eepresentatives  from  time 
to  time.  This  body,  so  remarkable  from  many 
other  stand -points,  is  liable  at  certain  periods  to  be 
carried  away  in  quest  of  the  most  unsubstantial 
popularity.  Then  all  restraints  are  disregarded. 
Without  going  further  back  than  1864,  nothing  is 
hazarded  by  saying  that,  if  its  policy  in  regard  to 
Mexico  had  then  prevailed,  war  would  probably 
have  ensued  between  France  and  the  United  States. 
In  1866,  with  a  view  of  gaining  some  Irish  votes, 
it  passed  a  bill  which,  had  it  become  a  law,  would 
at  one  blow  have  destroyed  the  whole  neutrality 
policy  created  by  Washington  and  continued  by 
all  his  successors.  In  1870  it  was  scarcely  more 
prudent  on  the  subject  of  Cuban  affairs.   Clearly, 


124  THE  EXECUTIVE  POWER 

these  criticisms  do  not  apply  to  the  Senate.  It  has 
almost  always  evinced  a  prudent  reserve  on  such 
questions.  But  why  has  this  been  so  ?  The  answer 
is  obvious.  This  body  is  more  directly  in  com- 
munication with  the  President*;  and  forming,  as  will 
soon  be  seen,  his  executive  council,  it  partakes,  to 
a  certain  degree,  the  grave  responsibility  that  he 
incurs.  This  important  distinction  should  be  care- 
fully considered  by  those  who  favor  the  omnipo- 
tence of  legislative  assemblies .  Many  theorists  hold 
that,  represetiting  the  people  directly,  the  legislative 
power  is  more  favorably  situated  than  any  other  to 
decide  the  weightiest  matters  growing  out  of  the 
foreign  relations  of  the  country,  and  that  the  power 
of  making  war  and  peace  should  be  lodged  exclu- 
sively with  it.  Nevertheless,  the  experience  of 
the  United  States  attests  that  the  executive  has 
alone  evinced  in  a  very  marked  degree  a  sense  of 
responsibility,  and  although  public  opinion  would 
have  nearly  always  justified  it  in  exercising  an  in- 
fluence over  Congress  to  further  an  aggressive  and 
menacing  policy  toward  other  nations,  it  has  contin- 
ually restrained,  by  its  prudent  moderation,  the  ill 
effects  that  might  have  resulted  from  the  precipi- 
tate action  of  the  House  of  Representatives. 


CHAPTER  YI. 

BELATIONS   OF  THE  PKESIDENT    TO    THE   JUDICIAL 
POWER   OF  THE   UNION. 

THIS  is  not  the  place  to  investigate  the  very 
interesting  questions  connected  with  the  judi- 
cial power,  or  the  organization  of  the   courts 
of  the  United  States.     The  constitutional  relations 
existing  between  them  and  the  President  will  alone 
be  considered. 

Although  by  the  Constitution  the  three  powers 
are  "equal,  co-ordinate  and  iDdependent,"  never- 
theless the  judicial  branch  occupies  a  peculiar  posi- 
tion in  regard  to  Congress  and  the  President.  It 
does  not,  in  the  first  place,  emanate  from  the  peo- 
ple. It  consists  of  judges  appointed  for  life,  who, 
by  this  very  circumstance,  are  gradually  raised  above 
the  impure  and  troubled  atmosphere  of  party  pas- 
sions. Hence  its  relative  weakness  as  compared 
with  the  other  powers,  and  its  imposing  moral  weight 
upon  the  more  intelligent  classes  of  society. 

At  the  same  time  the  federal  courts  are  in  many 

respects   dependent.      The  Constitution  declares : 

"  Th^  judicial  power  of  the  United  States  shall  be 

vested  in  one  Supreme  Court,  and  in  such  inferior 

(125) 


126  THE  EXECUTIVE  POWER 

courts  as  the  Congress  may,  from  time  to  time, 
ordain  and  establish."  ^ 

Congress  is,  without  doubt,  bound  to  respect  this 
constitutional  provision;  but,  in  conforming  to  it, 
may  still  maintain  a  preponderance  over  the 
judicial  department.  If  it  desires,  it  may,  undoubt- 
edly, restrict  the  appellate  jurisdiction  of  the 
Supreme  Court.  It  may  also  enact,  as  was  pro- 
posed in  1868,  that  this  court  shall  not  affirm  the 
unconstitutionality  of  an  act  of  Congress,  unless 
two4hirds  of  the  judges  present  concur  in  the  deci- 
sion.^ It  can  also  increase  or  diminish  the  number 
of  judges,  so  as  to  modify,  almost  at  discretion,  the 
constitution  of  the  court.  On  the  other  hand,  the 
President  exercises  a  considerable  influence  over  the 
judicial  power.  It  must  not  be  forgotten,  that  in 
fact  he  appoints  all  the  federal  judges.  As 
vacancies  happen  he  can,  by  '  the  selections  he 
makes  to  fill  them,  modify  the  character  of  the 
court. 

Notwithstanding  the  very  peculiar  status  of  the  Su- 
preme Court,  parties  on  several  occasions  endeavored 
to  compel  it  to  play  a  political  part  of  the  highest  im- 
portance. These  various  attempts  were  made  under 
the  following  circumstances.  At  the  close  of  the 
presidency  of  John  Adams,  the  Federal  party  retired 

1  Constitution,  Article  III.  Sec.  1. 

2  The  House  Representatives  adopted  this  measure  the  13th  of 
January,  1868.    (See  INIcPherson's  Political  Manual,  1868,  pp.  90-91.) 


IN  THE  UNITED  STATES.  127 

Irom  power,  having  lost  the  control  not  only  of  the 
executive,  but  also  of  the  two  branches  of  Congress. 
From  the  formation  of  the  American  Government 
leading  Federalists  tried  to  build  up  a  strong  central 
power.  The  judicial  authority,  however,  answered 
but  very  imperfectly  their  designs.  Hamilton  him- 
self said  that  it  was  the  weakest  branch  of  the  gov- 
ernment. To  use  his  own  words :  "  The  judiciary, 
on  the  contrary,  has  no  influence  over  either  the 

sword  or  the  purse and  can  take  no  active 

resolution  whatever."  He  desired  to  render  the 
executive  preponderating  power,  but  in  1800  he  had 
no  longer  a  choice. 

In  this  situation  the  Federalists  decided  to  give  to 
the  judicial  power  a  sort  of  supreme  control.  Hav- 
ing so  resolved,  it  was  necessary  first  to  strengthen 
its  organization.  To  this  end  they  agreed  to  increase 
the  number  of  courts  and  also  of  judges,  and  at  the 
same  time  to  extend  their  jurisdiction.  The  hours 
of  power  yet  remaining  to  this  party  were  already 
numbered  when  it  seized  the  occasion  to  pass  a 
bill  through  Congress  which  met  their  wishes,  and 
to  secure  the  approval  of  Mr.  Adams.  At  the  last 
moment  the  President  sent  to  the  Senate,  for  its 
confirmation,  the  na«nes  of  forty-two  judges.  This 
was  done  during  the  day  of  March  2d,  1801.  On 
the  evening  of  the  third  these  nominations  were 
confirmed,  and  the  morning  of  the  fourth  Presi- 
dent Jefferson  was  inaugurated. 


128  THE  EXECUTIVE  POWER 

He  found,  on  the  table  of  the  State  Department, 
the  commissions  of  some  of  these  magistrates, 
signed  by  his  predecessor,  countersigned  by  the 
Secretary  of  State,  and  attested  with  the  official 
seal.  Jefferson  ordered  that  they  should  be  neither 
registered  nor  delivered,  but  be  considered  as  void. 
This  act  furnished  the  Federalists  an  opportunity  to 
attack  him,  and  they  could  rely  upon  the  support 
of  the  Supreme  Court,  with  John  Marshall  at  its 
head.  One  of  the  magistrates,  Marbury,  whose 
commission  had  been  thus  withheld,  instituted  pro- 
ceedings in  that  court  against  James  Madison,  then 
Secretary  of  State,  and  applied  for  a  nnandaraus^ 
requiring  that  officer  to  deliver  it.  President 
Jefferson  understood  at  once  the  full  bearing  of 
this  movement.  He  therefore  directed  Mr.  Madi- 
son and  all  of  the  employees  of  the  State  Depart- 
ment not  to  enter  their  appearance  to  the  suit.  At 
the  December  term,  1801,  a  motion  was  made  for  a 
rule  against  Mr.  Madison  to  show  cause  why  a 
mandamus  ought  not  to  be  issued.  Madison  failed 
to  plead.  The  matter  was  then  argued.  The  fol- 
lowing is  an  analysis  of  the  celebrated  decision 
pronounced  on  this  occasion  by  Chief  Justice  Mar- 
shall, in  which  he  elaborately  discussed  the  follow- 
ing questions : 

1.  Has  the  plaintiff  a  right  to  the  commissioh  to 
which  he  lays  claim?  2.  If  he  has  si>ch  right,  and 
it  has  been  violated,  do  the  laws  of  the  country 


IN  THE  UNITED  STATES.  129 

furnisli  him  a  remedy?  3.  If  this  is  admitted  to 
be  so,  is  the  remedy  to  be  found  in  a  mandamus 
granted  by  the  Supreme  Court  ?  After  having  an- 
swered the  first  question  in  the  affirmative,  the 
learned  judge  proceeded:  "The  very  essence  of 
civil  liberty  certainly  consists  in  the  right  of  every 
individual  to  claim  the  protection  of  the  laws, 
whenever  he  receives  an  injury.  One  of  the  first 
duties  of  government  is  to  afford  that  protection. 
In  Grreat  Britain  the  king  himself  is  sued  in  the 
respectful  form  of  a  petition,  and  he  never  fails  to 
comply  with  the  judgment  of  his  court." 

The  Chief  Justice  here  cited  Blackstone  in  sup- 
port of  his  opinion.  According  to  the  English 
commentator,  wherever  there  is  a  legal  right  there 
is  a  legal  remedy,  when  that  right  is  invaded  or 
withheld.  The  opinion  then  proceeded :  "  The 
government  of  the  United  States  has  been  emphat- 
ically termed  a  government  of  laws,  and  not  of 
men.  It  will  cej-tainly  cease  to  deserve  this  high 
appellation  if  the  laws  furnish  no  remedy  for  the 
violation  of  a  vested  legal  right."  "Is  the  act  of  de- 
livering or  witholding  a  commission  to  be  considered 
as  a  mere  political  act,  belonging  to  the  Executive 
Department  alone,  for  the  performance  of  which  en- 
tire confidence  is  placed  by  our  Constitution  in  the 
supreme  executive,  for  any  misconduct  respecting 
which  the  injured  individual  has  no  remedy  ?  " 

He  admitted,  then,  that  without  doubt  circum- 
9 


I30  THE  EXECUTIVE  POWER 

Stances  might  occur  in  which  a  recourse  to  the 
courts  would  be  impossible  ;  but  he  refused  to  de- 
clare that  every  act  committed  by  one  of  the  great 
branches  of  the  government  ought  to  be  classed  in 
this  category. 

He  established  on  this  subject  the  following  distinc- 
tion :  "By  the  Constitution  of  the  United  States  the 
President  is  invested  with  certain  important  political 
powers,  in  the  exercise  of  which  he  is  to  use  his 
own  discretion,  and  is  accountable  only  to  his  coun- 
try in  his  political  character  and  to  his  own  con- 
science. To  aid  him  in  the  performance  of  these 
duties  he  is  authorized  to  apppoint  certain  ofiicers, 
who  act  by  his  authority  and  in  conformity  with 
his  orders."  "  In  such  cases  their  acts  are  his  acts, 
and  whatever  opinion  may  be  entertained  of  the 
manner  in  which  executive  discretion  may  be  used, 
still  there  exists,  and  can  exist,  no  power  to  control 
that  discretion.  The  subjects  are  political.  They 
respect  the  nation,  not  individual  rights,  and  being 
intrusted  to  the  executive,  the  decision  of  the  exec- 
utive is  conclusive.  The  application  of  this  remark 
will  be  perceived  by  adverting  to  the  act  of  Con- 
gress for  establishing  the  department  of  foreign 
affairs.  This  officer,  as  his  duties  were  prescribed 
by  that  act,  is  to  conform  precisely  to  the  will  of 
the  President.  He  is  the  mere  organ  by  whom  that 
will  is  communicated.  The  acts  of  such  an  officer 
can  never  be  examinable  by  the  courts." 


IN  THE  UNITED  STATES. 


131 


"But  wlieii  the  Legislature  proceeds  to  impose  on 
that  officer  other  duties ;  when  he  is  directed  per- 
emptorily to  perform  certain  acts ;  when  the  rights 
of  individuals  are  dependent  on  the  performance 
of  those  acts,  he  is  so  far  the  officer  of  the  law — 
is  amenable  to  the  laws  for  his  conduct,  and  cannot 
at  his  discretion  sport  away  the  vested  rights  of 
others."  The  Chief  Justice  said,  in  conclusion,  that 
"The  question  whether  a  right  has  vested  gr  not 
is  in  its  nature  judicial,  and  must  be  tried  by  the 
judicial  authority.  If,  for  example,  Mr.  Marbury 
has  taken  the  oath,  of  a  magistrate,  and  proceeded 
to  act  as  one ;  in  consequence  of  which  a  suit  has 
been  instituted  against  him,  in  which  his  defense 
depended  on  his  being  a  magistrate,  the  validity  of 
his  appointment  must  have  been  determined  by 
judicial  authority." 

Such  was  the  Federal  doctrine  announced  by  the 
Chief  Justice  in  this  case.  But  what  is  remarkable, 
the  judge  who  had  just  argued  with  such  forcible 
logic  the  question  of  the  relations  subsisting  be- 
tween the  Judicial  and  the  Executive  Powers 
was  constrained  to  conclude  that  the  Supreme  Court, 
in  the  exercise  of  its  original  jurisdiction,  could  not 
award  the  writ.  That  jurisdiction  was  prescribed 
by  the  Constitution  and  could  not  be  enlarged  or 
diminished  by  act  of  Congress. 

"Still,"  said  he,  "to  render  the  TTmwcZamws  a  pro- 
per remedy,  the  officer  to  whom  it  is  to  be  directed 


132  THE  EXECUTIVE  POWER 

must  be  one  to  whom,  on  legal  principles,  sucli  writ 
may  be  directed,  and  the  person  applying  for  it 
must  be  without  any  other  specific  and  legal  remedy. 
First,  with  respect  to  the  officer  to  whom  it  would 
be  directed.  The  intimate  political  relations  sub- 
sisting between  the  President  of  the  United  States 
and  the  heads  of  departments  necessarily  renders 
any  l^egal  investigation  of  the  acts  of  one  of  those 
high  officers  peculiarly  irksome,  as  well  as  deli- 
cate." 

Thus,  after  having  several  times  demonstrated 
the  principles  previously  enunciated,  he  concluded 
by  rejecting  the  claim  of  Marbury  upon  jurisdic- 
tional grounds  alone.  So  that  the  judicial  power 
explicitly  affirmed  the  doctrine,  that  where  tha  law 
imposes  upon  an  executive  officer  a  ministerial  act 
not  involving  the  exercise  of  judgment  or  discretion, 
a  mandamus  would  lie  when  a  proper  case  arises, 
but  that  the  courts  could  not  interfere  with  the 
President  or  his  subordinates  in  the  discharge  of 
their  political  duties.  This  distinction  has  been 
recognized  and  enforced  by  the  Supreme  Court  in 
an  unbroken  series  of  decisions ;  and  in  a  leading 
case  under  the  following  circumstances : 

The  Thirty-ninth  Congress,  at  its  last  session, 
(1866-67)  passed  a  first  measure — so  called — of 
reconstruction^  which  was  subsequently  completed, 
and  in  many  respects  made  more  stringent  by  the 
act  of  23d  March,  1867.     Mississippi   raised   the 


IN  THE  UNITED  STATES.  133 

constitutional  question  before  tlie  Supreme  Court, 
by  a  bill  in  chancery,  praying  tbat  the  Pre^dent 
of  the  United  States  and  the- general  commanding 
the  military  district  in  which  this  State  was  com- 
prised, be  enjoined  from  executing  these  laws.  The 
court  dismissed  the  bill.  Chief  Justice  Chase  gave 
the  opinion.  Although  less  emphatic  in  tone  than 
that  of  his  great  predecessor  Marshall,  in  Marbury 
against  Madison,  it  distinctly  declares  that  the  judi- 
cial power  cannot  take  cognizance  of  the  political 
acts  of  the  President.  "  It  is  true,"  said  he,  *'  that  in 
the  instance  before  us  the  interposition  of  the  court 
is  not  sought  to  enforce  action  by  the  executive 
under  constitutional  legislation,  but  to  restrain  such 
action  under  legislation  alleged  to  be  unconstitu- 
tional. But  we  are  unable  to  perceive  that  this 
circumstance  takes  the  case  out  of  the  general 
principle  which  forbids  j  udicial  interference  with  the 
exercise  of  executive  discretion.  The  Congress," 
continues  the  opinion,  "is  the  legislative  department 
of  the  government ;  the  President  is  the  executive 
department ;  neither  can  be  restrained  in  its  action 
by  the  judicial  department,  though  the  acts  of  both, 
when  performed,  are  in  proper  cases  subject  to  its 
cognizance."  And  here  the  opinion  makes  this  im- 
portant observation.  "If  the  President  refuse 
obedience,  it  is  needless  to  observe  the  court  is  with- 
out power  to  enforce  its  process.  If  on  the  other 
hand  the  President  complies  with  the  order  of  the 


134  ^^^  EXECUTIVE  POWER 

court,  and  refuses  to  execute  the  act  of  Congress, 
is  it  not  clear  that  a  collision  may  occur  between 
the  executive  and  legislative  departments  of  the 
government?  May  not  the  House  of  Eepresenta- 
tives  impeach  the  President  for  such  refusal? 
And  in  that  case  could  this  court  interpose  in  be- 
half of  the  President,  thus  endangered  by  compli- 
ance with  its  mandate,  and  restrain  by  injunction 
the  Senate  of  the  United  States  from  sitting  as  a 
court  of  impeachment  ?"  ^  Thus  the  political  action 
of  the  President  completely  escapes  examination 
by  the  courts  of  justice.  It  remains  to  consider  in 
what  way  an  act  of  Executive  Power  falls  under 
their  jurisdiction. 

It  is  almost  impossible  to  give  fixed  rules  in  this 
respect.  No  uniform  law  has  attempted  to  declare 
them,  and  the  doctrine  of  the  court  has  naturally 
varied  in  different  cases,  so  that  it  is  advisable  only 
to  show  in  what  manner  the  Supreme  Court  has, 
under  certain  circumstances,  asserted  and  vindi- 
cated private  rights.  One  of  the  most  important 
causes  decided  by  it  is  that  relating  to  the  legality 
of  military  commissions.  During  the  war  of  se- 
cession those  who  took  the  broadest  views  of 
Executive  Power  maintained  that  the  President 
could  declare  martial  law  not  only  in  the  insur- 
gent districts,  but  also  in  the  loyal  States  wher- 
ever conspiracies  occurred  which  threatened  the 

1  Political  Manual  for  1867,  by  McPherson,  p.  113. 


IN  THE  UNITED  STATES.  135 

public  safety.  Indiana  was  thus  placed  under 
this  exceptional  rule.  The  executive  had  ordered 
the  arrest  of  several  individuals,  and,  what  was 
still  more  serious,  created  a  military  commission 
for  their  trial.  Among  others,  one  Milligan  was 
tried  by  it  and  condemned  to  death.  It  is  proper 
to  observe,  also,  that  the  President's  power  sus- 
pending the  privilege  of  the  writ  of  habeas  corpiLS 
in  the  loyal  States  had  been  approved  by  Con- 
gress. In  this  situation  of  affairs  Milligan  resorted 
to  the  district  court,  and  grounded  his  claim  to 
relief  upon  the  incompetence  of  the  commission  to 
try  and  condemn  a  person  not  in  the  military  service 
of  the  United  States.  The  cause  was  appealed  to 
the  Supreme  Court.  His  counsel  discussed  the 
questions  involved  in  all  their  aspects.  On  the 
other  side,  the  United  States  vigorously  maintained 
the  (Jrder  of  the  President.  Finally  the  court  ren- 
djcred  its  judgment.  The  majority  of  the  judges 
declared  the  proceedings  illegal,  and  ordered  Milli- 
gan to  be  set  at  liberty.  Their  opinion  sets  forth 
that  "the  provisions  of  that  instrument  on  the 
administration  of  criminal  justice  are  too  plain 
and  direct  to  leave  room  for  misconstruction-  or 
doubt  of  their  true  meaning.  Those  applicable 
to  this  case  are  found  in  that  clause  of  the  origi- 
nal Constitution  which  says  that  '  the  trial  of  all 
crimes,  except  in  case  of  impeachment,  shall  be  by 
j^ry.' 


136  THE  EXECUTIVE  POWER 

"But  it  is  said  that  the  jurisdiction  is  complete 

under    the  'laws  and  usages   of   war' this 

court  has  judicial  knowledge  that  in  Indiana  the 
federal  authority  was  always   unopposed,  and  its 

courts  always  open Congress  could  grant  no 

such  power." 

What  has  just  been  given  suffices,  without  here 
reproducing  the  entire  argument,  to  show  that  the 
judicial  power  could  effectually  interpose  to  protect 
the  liberty  of  a  citizen  against  the  combined 
action  of  the  executive  and  the  Legislature.  ^ 

This  judgment  was  rendered  the  17th  December, 
1866.  The  civil  war  then  at  an  end ;  the  order 
declaring  martial  law  in  the  loyal  States  had  been 
revoked.  Therefore  the  Supreme  Court  could  not 
modify  the  situation,  and  it  limited  itself,  if  we 
may  say  so,  to  declaring  and  maintaining  the  rights 
guaranteed  by  the  Constitution  to  the  citizen. 
But  suppose  that  the  opinion  and  judgment  had 
been  pronounced  during  the  continuance  of  the 
armed  struggle.  What  course  would  the  executive 
have  adopted?  Perhaps  it  would  have  resolved 
to  disregard  them.  In  such  case  the  Supreme 
Court  could  only  have  repeated  the  protest  of 
Chief  Justice  Taney  on  another  occasion :  "I 
have  exercised  all  the  power  which  the  Constitution 
and  laws  confer  on  me,  but  that  power  has  been 

1  Political  Manual  for  1867,  by  McPherson,  p.  83  ei  aeq,  and  4 
Wallace  pp.  121-22. 


IN  THE  UNITED  STATES.  137 

resisted  by  a  force  too  strong  for  me  to  overcome," 
and  awaited  its  justification  by  the  public  senti- 
ment of  tlie  country.  ^  Bat  if,  on  the  contrary,  the 
President  had  obeyed  the  decision,  and  hberated 
Milhgan,  he  would  not  have  been  thereby  compelled 
to  abolish  military  commissions  in  the  loyal  States. 
He  would  simply  have  said  that  the  decision  was 
only  binding  in  that  case,  and  so  then  Milligan 
alone  would  have  been  benefited  by  it.  We  must 
not,  however,  conclude  from  this  instance,  occurring 
as  it  did  during  the  perils  and  agitations  of  a 
civil  war,  that  in  ordinary  times  the  executive 
fails  to  manifest  an  earnest  desire  to  accept  and 
abide  by  the  decisions  of  the  Supreme  Court, 
whenever  a  case  arises  to  which  they  apply. 

"We  give  one  example  among  a  thousand  to  show 
the  ordinary  course  of  proceedings.  The  President 
was  authorized  by  the  law  of  neutrality  of  1794  to 
detain  all  vessels  which  had  been  fitted  out  and 
armed  within  the  ports  or  waters  of  the  United 
States,  for  violatioii  of  its  prohibitions  or  provi- 
sions.^ The  President,  in  1816,  ordered  the  col- 
lector of  the  port  of  New- York  to  seize  and  detain 
a  suspected  vessel.  The  detention  was  continued 
by  him  for  some  time  without  taking  the  required 
steps  to  bring  her  before  the  proper  court  for  adju- 

1  Law  Reporter,  June,  1861,  p.  89  exparte  Merryman. 

2  This  provision  again  appears  in  the  act  commonly  known  as 
the  neutrality  act,  adopted  in  1818,  and  now  in  force. 


138  THE  EXECUTIVE  POWER 

dication.  The  proprietors  then  resorted  to  judicial 
proceedings  to  determine  whether  the  prerogative 
of  the  President  implied  a  right  unduly  to  prolong 
the  duration  of  an  arbitrary  seizure.  On  appeal 
to  the  Supreme  Court  it  was  held  that  the  Presi- 
dent could  not  detain  a  vessel,  except  during  the 
time  necessary  to  carry  the  case  before  the  courts.^ 

Since  then  the  Executive  Power  has  made  no  dif- 
ficulty in  conforming  its  action  in  such  cases  to  this 
decision. 

Thus,  in  1869,  when  Spain  was  building  thirty  gun- 
boats in  New  York,  Peru,  alleging  that  there  still 
existed  a  state  of  war  between  her  and  Spain,  re- 
quested the  President  of  the  United  States  to  detain 
them  provisionally.  Although  no  proof  was  fur- 
nished of  the  truth  of  the  allegation,  he  consented 
to  exercise  the  power  granted  him  by  the  neutrality 
act,  and  in  consequence  forbade  the  launching  of 
them ;  but  as  Pern  took  no  further  step  in  the 
matter,  he,  in  view  of  the  decision  of  the  Supreme 
Court,  soon  directed  their  release.  In  recapitu- 
lating what  has  been  said  upon  the  relations  of  the 
executive  to  the  Supreme  Court,  it  is  well  to 
notice : 

1.  That  the  judicial  authority  must  avoid  inter- 
fering with  the  legislative  and  political  functions  of 
the  President.  It  can  neither  constrain  him  to  exe- 
cute or  to  oppose  a  law. 

1  Slocura  vs.  Mayberry  et  al.,  2  Wlieaton  p.  1  el  seq. 


IN  THE  UNITED  STATES.  139 

2.  That  in  the  greater  number  of  cases  the  Judi- 
cial Power,  when  it  has  jurisdiction  of  a  cause, 
protects  the  constitutional  or  vested  rights  of  a 
citizen  against  the  encroachments  of  the  Executive 
or  the  Legislative  Power.  Its  decisions,  as  a  gen- 
eral thing,  constitute  a  jurisprudence  full  of  wis- 
dom. They  are  consulted  bj  the  other  branches 
of  the  government,  and  considered  of  the>  highest 
authority. 

But  we  canhot  close  this  chapter  without  speci- 
ally adverting  to  the  right  which  the  Supreme  Court 
has  almost  constantly  asserted  of  deciding,  as  a  tri- 
bunal of  last  resort,  upon  the  constitutionality  of 
laws.  In  fact  it  has  not  simply  limited  its  action 
to  the  interpretation  of  the  laws  and  the  establish- 
ment of  its  jurisprudence;  but  at  certain  epochs 
has  assumed  to  impose  its  opinions  upon  other 
branches  of  the  federal  government,  and  render 
judgments  upon  the  validity  of  their  acts.  In  the 
decision  in  Marbury  against  Madison,  Chief  Justice 
Marshall  clearly  asserted  this  claim.  He  says 
"  That  the  people  have  an  original  right  to  establish, 
for  their  future  government,  such  principles  as  in 
their  opinion  shall  most  conduce  to  their  own  hap- 
piness ;  it  is  the  base  on  which  the  whole  American 
fabric  has  been  erected.  The  exercise  of  this  orig- 
inal right  is  a  very  great  exertion ;  nor  can  it,  nor 
ought  it,  to  be  frequently  repeated.  The  princi- 
ples, therefore,  so  established,  are  deemed  funda- 


I40  THE  EXECUTIVE  POWER 

mental,  and  as .  the  authority  from  which  they 
proceed  is  supreme,  and  can  seldom  act,  they  are 
designed  to  be  permanent.  This  original  and 
supreme  will  organizes  the  government,  and  assigns 
to  dijfferent  departments  their  respective  powers. 
It  may  either  stop  here,  or  establish  certain  limits 
not  to  be  transcended  by  those  departments."  The 
opinion  -then  establishes  that  the  powers  of  the 
Legislature  are  defined  and  limited,  by  a  written 
Constitution,  in  order  that  Congress  should  not 
exceed  them.  If  then  a  legislative  act  be  con- 
trary to  the  Constitution,  it  follows  as  an  inevi- 
table conclusion,  inasmuch  as  that  instrument  is 
of  paramount  authority,  that  such  act  "is  not 
law.;' 

The  Chief  Justice  deduced  from  these  principles 
the  following  conclusion :  If  an  act  ©f  the  Legisla- 
ture is  void,  it  cannot  bind  the  courts,  and  they  are 
not,  therefore,  obliged  to  put  it  in  execution.  "It 
is  emphatically  the  province  and  duty  of  the  judi- 
cial department  to  say  what  the  law  is.  Those 
who  apply  the  rule  to  particular  cases  must  of 
necessity  expound  and  interpret  that  rule.  If  two 
laws  conflict  with  each  other,  the  courts  must 
decide  on  the  operation  of  each.  So  if  a  law  be  in 
opposition  to  the  Constitution,  if  both  the  law  and 
the  Constitution  apply  to  a  particular  case,  so  that 
the  court  must  either  decide  that  case  conformably 
to  the  law,  disregarding  the  Constitution,  or  con- 


IN  THE  UNITED  STATES.  141 

formably  to  the  Constitution,  disregarding  the  law, 
the  court  must  determine  which  of  these  conflicting 
rules  govern  the  case.  This  is  of  the  very  essence 
of  judicial  duty.^ 

Moreover,  the  text  of  the  Constitution  of  the 
United  States  confirms  this  opinion  :  "  The  judicial 
power  shall  extend  to  all  cases  arising  under  this 
Constitution."  What  meaning  could  be  given  to 
this  clause,  if  the  tribunals  had  not  the  right  of 
interpretation  ? 

The  principles  deduced  with  so  much  force  by 
Chief  Justice  Marshall,  are  incontestably  sound,  as 
applied  to  the  judicial  power.  No  one  has  doubted 
the  power  of  the  courts  to  determine  the  consti- 
tutionality of  a  law,  when  the  question  arises,  in 
any  pending  suit,  within  their  jurisdiction.  But 
the  point  now  under  discussion  is,  whether  their 
decision  upon  constitutional  questions  establishes 
a  rule  which  binds  the  other  branches  of  the  gov- 
ernment. In  a  word,  is  the  Legislature  or  the 
executive  compelled  to  consider  as  unconstitutional 
an  act  declared  to  be  such  by  the  Supreme  Court, 
or  as  one  of  the  disciples  of  John  Marshall  said, 
dpes  the  power  of  interpreting  the  laws  necessarily 
imply  that  of  examining,  if  they  are  in  accordance 
with  the  Constitution,  and  is  the  judgment  of  that 
court,  declaring  them  null  and  void,  conclusive  1} 

1  Cranch's  Reports,  pp.  131  elseq. 

2  Commentaries  on  the  Constitution  of  the  United  States  by  Mr. 
Justice  story,  If  1570. 


142  THE  EXECUTIVE  POWER 

Such  is  the  question  in  all  its  breadth.  If  Mar- 
Rhall  did  not  present  it  in  its  full  extent,  Story 
went  further.  Moreover,  we  must  observe  that  this 
eminent  magistrate  and  commentator  wrote  at  the 
moment  when  the  discussion  relative  to  the  right 
of  interpretation  claimed  by  the  Supreme  Court 
was  about  to  be  renewed. 

In  fact,  the  old  Republican  party  of  Jefferson, 
which  had  become,  under  President  Jackson,  the 
Democratic  party,  had  never  for  a  moment  ceased 
to  protest  against  the  constitutional  prerogatives 
that  the  judicial  power  assumed  to  maintain.  Un- 
der these  circumstances  the  question  again  came 
up  on  the  subject  of  the  United  States  Bank. 

Although  the  Supreme  Court  had  declared  that 
the  act  incorporating  the  bank  was  constitutional, 
yet  President  Jackson,  as  mentioned  in  one  of  the 
preceding  chapters,  vetoed  the  act  renewing  its 
charter.  It  was  insisted  by  the  advocates  of  the  bank 
that  its  constitutionality,  in  all  its  features,  ought 
to  be  considered  as  settled  by  precedent  and  by  the 
decision  of  the  Supreme  Court.  But  he  pro- 
tested against  that  doctrine,  and  observed  that 
"  without  the  consent  of  the  people  the  Supreme 
Court  could  not  decide  questions  of  this  class.  The 
Congress,  the  Executive  and  the  Court  must  each  for 
itself  be  guided  by  its  own  opinion  of  the  Constitu- 
tion. Each  public  officer  who  takes  an  oath  to 
support  the  Constitution  swears  that  he  will  sup- 


IN  THE  UNITED  STATES.  143 

port  it  as  he  understands  it,  and  not  as  it  is  under- 
stood by  others.  The  opinion  of  the  judges  has 
no  more  authority  over  Congress  than  the  opin- 
ion of  Congress  has  over  the  judges,  and  on  that 
point  the  President  is  independent  of  both.  The 
authority  of  the  Supreme  Court  must  not,  there- 
fore, be  permitted  to  control  the  Congress  or  the 
executive  when  acting  in  their  legislative  capaci- 
ties," ^ 

The  Whig  party  adhered  to  the  Federal  doc- 
trine, and  Mr.  Webster  defended  it  with  all  the 
force  of  his  talent,  yet  the  prevailing  words  of  this 
discussion,  so  far  as  we  can  judge  at  present,  were 
uttered  by  a  Democratic  Senator  from  Tennessee, 
who  was  assuredly  not  the  intellectual  equal  of  the 
great  Whig  orator. 

"  The  honorable  Senator,"  said  Mr.  White,  "  ar- 
gues that  the  Constitution  has  constituted  the  Su- 
preme Court  a  tribunal  to  decide  great  constitu- 
tional questions  such  as  this,  and  that  when  they 
have  done  so,  the  question  is  put  at  rest,  and  every 
other  department  of  the  government  must  acqui- 
esce. This  doctrine  I  deny.  The  Constitution 
vests  'the  judicial  power  in  a  Supreme  Court,  and 
in  such  inferior  courts  as  Congress  may  from  time 
to  time  ordain  and  establish.'  Whenever  a  suit  is 
commenced  and  prosecuted  in  the  courts  of  the 
United  States,  of  which  they  have  jurisdiction,  and 

1  Thirty  Years'  View,  Vol.  I.,  p.  252. 


144  THE  EXECUTIVE  POWER 

suit  is  decided  by  tlae  Supreme  Court — as  that  is 
the  court  of  last  resort — its  decision  is  final  and 
conclusive  between  the  parties.  But  as  an  au- 
thority it  does  not  bind  either  the  Congress  or  the 

President  of  the  United  States If  different 

interpretations  are  put  upon  the  Constitution  by 
the  different  departments,  the  people  is  the  tribu- 
nal to  settle  the  dispute.  Each  of  the  departments 
is  the  agent  of  the  people,  doing  their  business  ac- 
cording to  the  powers  conferred,  and  where  there 
is  a  disagreement  as  to  the  extent  of  these  powers, 
the  people  themselves,  through  the  ballot-boxes, 
must  settle  it."^ 

Such  was  the  opinion  of  General  Jackson  and  his 
leading  adherents,  in  which  a  majority  of  the  people 
acquiesced. 

Twenty-five  years  later  the  Democratic  "party 
repudiated  these  doctrines.  Eelying  upon  the  sym- 
pathies of  a  majority  of  the  Supreme  Court,  they 
asserted  the  binding  authority  of  judicial  interpre- 
tation. On  the  other  hand,  the  new  Eepublican 
party,  although  rather  allied  by  its  principles  to 
the  old  Federal  school,  espoused  the  doctrine  of 
President  Jackson.  Thus,  by  a  strange  turning 
over,  the  Democrats  in  1857  became  the  disciples 
of  Hamilton,  and  the  Eepublicans,  of  Jefferson. 

At  that  date  the  question  of  the  power  of  Con- 

iPoUtical  Parties  in  the  United  States,  by  Martin  Van  Buren, 
p.  311  et  seq. 


IN  THE  UNITED  STATES,  145 

gress  over  slavery  in  tlie  territories  was  profoundly 
agitating  the  Union,  and  the  celebrated  case  of  Dred 
Scott  against  Sanford  was  carried  before  the  Su- 
preme Court.  It  involved  matters  which  might 
lead  the  judges  to  render  a  decision  bearing  upon 
the  political  issues  of  the  day.  The  court  might 
have  given  its  opinion  during  the  term  of  1855- 
56,  but  as  the  presidential  election  was  impending, 
the  judges  thought  it  best  to  postpone  the  judg- 
ment. 

President  Buchanan  was  inaugurated  March  4th, 
1857.  In  his  address  on  that  occasion  he  said  that 
a  difference  of  opinion  had  arisen  as  to  the  time 
when  the  inhabitants  of  a  territory  were  author- 
ized to  decide  for  themselves  the  question  of  sla- 
very. "Besides,"  added  he,  "it  is  a  judicial  ques- 
tion which  legitimately  belongs  to  the  Supreme 
Court  of  the  United  States,  before  whom  it  is  now 
pending,  and  will,  it  is  understood,  be  speedily  and 
finally  settled.  To  their  decision,  in  common  with 
all  good  citizens,  I  shall  cheerfully  submit."^ 

Tv\''o  days  later  the  decision  was  pronounced. 
Its  doctrines  need  not  be  here  analyzed.  It  is  suf- 
ficient to  say,  that  never  had  the  Federalists  pushed 
further  the  legislative  assumptions  of  the  Supreme 
Court.2 

1  ^naugural  address  of  President  James  Buchanan. 

2  The  American  Conflict,  by  Horace  Greeley,  p.  251.    Mr.  Bu- 
chanan's Administration,  p.  50. 

10 


146  THE  EXECUTIVE  POWER 

Nevertheless  this  decision  was  not  received  as 
final.  The  President  asked  in  vain,  that  it  should 
be  so  considered.  The  Republicans  replied,  as  Gen- 
eral Jackson  had  formerly  done,  that,  although 
conclusive  upon  Dred  Scott  and  Sanford,  the  par- 
ties to  the  suit  wherein  it  was  rendered,  it  had  no 
binding  effect  upon  the  country.  They  protested 
vehemently  against  the  doctrines  it  announced. 
Then,  as  Mr.  Buchanan  himself  observes  in  a  pub- 
lished defense  of  his  administration,  the  agitation 
continued  for  years,  just  as  if  the  Supreme  Court 
had  not  spoken. 

And  March  4th,  1861,  President  Lincoln  men- 
tions the  subject  in  the  following  manner :  "Con- 
stitutional questions  are  to  be  decided  by  the 
Supreme  Court;  nor  do  I  deny  that  such  decision 
must  be  binding  in  any  case  upon  the  parties  fo  a 
suit,  as  to  the  object  of  that  suit,  while  they  are 
also  entitled  to  very  high  respect  and  consideration 
in  all  parallel  cases  by  all  other  departments  of  the 

government At   the   same   time  the  candid 

citizen  must  confess  that  if  the  policy  of  the  gov- 
ernment upon  vital  questions,  affecting  the  whole 
people,  is  to  be  irrevocably  fixed  by  decisions  of 
the  Supreme  Court,  the  instant  they  are .  made  in 
ordinary  litigation  between  parties  in  personal 
actions,  the  people  will  have  ceased  to  be  their  own 
rulers,  having  to  that  extent  practically  resigned 


IN  THE  UNITED  STATES.  147 

their  government  into  tlie  hands  of  that  eminent 
tribunal."  ^ 

Thus  the  doctrine  of  the  finality  of  the  decisions 
of  the  Supreme  Court  on  constitutional  questions 
has  never  met  Avith  universal  acceptance.  Sus- 
tained by  one  party,  they  have  been  resisted  by  the 
other.  Under  Jefferson  and  Jackson  the  execu- 
tive refused  to  yield  to  them  ;  under  Buchanan  it 
taught  that  unhesitating  submission  to  them  was 
the  first  duty  of  all  good  citizens.  The  Eepublican 
party  refused  to  accept  as  a  rule  of  political  action 
the  opinions  of  that  court  which  asserted  the  un- 
constitutionality of  federal  legislation  excluding 
slavery  from  the  territories.  Indeed  it  could 
scarcely  have  been  otherwise. 

To  recapitulate,  the  three  powers  are  co-ordinate 
and  independent.  Each,  in  the  discharge  of  its 
appropriate  duties,  is  to  decide  for  itself  the  con- 
stitutionality of  laws.  Congress  determines  this 
question.  So  does  the  President,  whenever  bills 
are  presented  for  his  signature.  So  must  the  Su- 
preme Court,  in  cases  within  its  original  or  appel- 
late jurisdiction.  The  judgment  of  the  latter  upon 
the  inquiry  whether  a  given  law  is  in  accordance 
with  the  Constitution  is  undoubtedly  final,  so  far 
as  the  parties  to  the  record  are  concerned ;  but  the 
other  branches  of  the  government  are  not  bound 

1  Mr.  Lincoln's  Inaugural  Address,  March  4th,  1861.   McPherson's 
History  of  the  Rebellion,  p.  107. 


148  THE  EXECUTIVE  POWER 

by  it  or  by  the  doctrines  advanced  in  the  reasoned 
opinion  of  the  court.  So  the  action  of  the  judicial 
tribunals  is  thus  necessarily  confined  within  fitting 
and  salutary  limits.  Charged  with  the  protection 
of  individual  rights,  they  are  invested  with  an  au- 
thority, the  importance  of  which  can  be  scarcely 
exaggerated. 

It  is  their  duty,  in  disposing  of  suits,  not  only  to 
interpret  the  enactments  which  are  applicable  to 
the  subject-mafter  in  controversy,  but  to  decide 
whether  they  are  in  conflict  with  the  Constitution, 
and  if  so,  to  give  to  the  latter  supreme  authority. 
That  instrument  guarantees  almost  all  the  individ- 
uol  rights  of  the  citizen,  and  when  they  are  assailed 
by  the  tyrannical  acts  of  either  legislative  or  Exec- 
utive Power,  the  Supreme  Court  can  almost  always 
stretch  forth  its  protecting  arm  in  his  defense. 


CHAPTER  YII. 

THE  FEDERAL  ADMINISTRATION. 

THE  President  is  elected  in  the  beginning  of 
November.^  The  4th  of  March  following,  at 
noon  precisely,  the  powers  of  his  predecessor 
expire,  and  the  newly-elected  President  appears 
before  the  people,  assembled  at  the  Capitol,  and 
the  Chief  Justice  of  the  United  States  administers 
the  constitutional  oath.  This  scene  is  always  im- 
pressive, and,  under  certain  circumstances,  inspires 
the  nation  with  the  deepest  interest. 

On  the  occasion  of  this  solemn  ceremony  the 
President  makes  known  to  the  people  his  political 
programme.  He  has  had  negirly  four  months  to 
prepare  it  and  to  think  over  the  pledges  given  by 
his  party  during  the  electoral  campaign.  He  has 
also,  as  a  general  thing,  counseled  with  experienced 
men.  He  has  not,  then,  wanted  opportunities  of 
informing  himself  upon  the  great  issues  of  which 
he  is  about  to  assume  the  direction,  so  that  his 
address,  at  the  moment  of  entering  upon  office, 
ought  to  give  the  result  of  his  preliminary  reflec- 
tions. 

(149) 


I50  THE  EXECUTIVE  POWER 

When  the  President  has  been  re-elected,  his  situ- 
ation is  infinitely  better.  He  has  the  advantage 
of  experience ;  but,  even  in  this  event,  a  new  period 
begins  for  him  at  his  second  inauguration.  Ameri- 
can politics  change  every  four  years,  and  this  is 
almost  as  much  the  case  when  the  President  is  re- 
elected as  when  a  new  personage  makes  his  appear- 
ance. 

The  address  delivered,  the  chief  magistrate  takes 
the  following  oath:  "I  do  solemnly  swear  [or  af- 
firm] that  I  will  faithfully  execute  the  office  of 
President  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the 
Constitution  of  the  United  States."  It  is  thus  that 
he  enters  on  the  execution  of  his  office.  If,  in 
order  to  prepare  himself  for  the  proper  fulfillment 
of  the  duties  imposed  upon  him,  he  limited  himself 
to  a  study  of  the  text  of  the  Constitution,  he  would 
fail  to  have  an  exact  idea  of  them.  He  would 
there  find  that  he  is  vested  with  the  power  of  a 
suspensive  veto,  and  that  it  is  his  duty  to  take  care 
that  the  laws  be  faithfully  executed.  He  would 
also  learn  that  he  is  the  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States;  that  he  may 
require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments  upon 
any  subject  relating  to  the  duties  of  their  respec- 


IN  THE  UNITED  STATES.  151 

tive  offices ;  that  he  has  the  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States 
in  cases  of  impeachment;  that  he  has  the  power, 
by  and  with  the  advice  and  consent  of  the  Seriate, 
to  make  treaties,  provided  two-thirds  of  the  Sena- 
tors present  concur,  and  to  nominate,  and  by  and 
with  the  advice  and  consent  of  the  Senate,  appoint 
ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other  officers 
of  the  United  States  whose  appointments  are  not 
therein  otherwise  provided  for,  and  which  have 
been,  or  shall  be,  established  by  law ;  that  he  has 
power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  Senate,  by  granting  com- 
missions which  shall  expire  at  the  end  of  their 
next  session ;  that  he  shall  from  time  to  time  give 
to  the  Congress  information  of  the  state  of  the 
Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient ; 
that  he  may,  on  extraordinary  occasions,  convene 
both  Houses,  or  either  of  them,  and  in  case  of  disa- 
greement between  them,  with  respect  to  the  time 
of  adjournment,  may  adjourn  them  to  such  time 
as  he  shall  think  proper;  that  he  shall  receive 
ambassadors  and  other  public  ministers ;  and,  finally, 
that  he  shall  commission  all  the  officers  of  the 
United  State.  ^. 

Such  are  his  powers  and  duties,  as  set  forth  in 

1  Constitution,  Article  II.,  Sections  2,  3. 


152  THE  EXECUTIVE  POWER 

the  Constitution.  As  may  be  seen  they  are  quite 
undefined.  A  commentator  remarks :  "  In  many  re- 
spects the  most  defective  part  of  the  Federal  Con- 
stitution, beyond  all  question,  is  that  which  relates 
to  the  executive  departments.  It  is  impossible  to 
read  that  instrument  without  being  forcibly  struck 
with  the  loose  and  unguarded  terms  in  which 
the  powers  and  duties  of  the  President  are  pointed 
out but  in  regard  to  the  executive  the  con- 
vention appears  to  have  studiously  selected  such 
loose  and  general  expressions  as  would  enable  the 
President,  by  implication  and  construction,  either 
to  neglect  his  duties  or  to  enlarge  his  powers."  ^ 

But,  on  the  other  hand,  it  is  almost  certain  that, 
if  the  convention  had  been  more  definite,  the  Con- 
stitution could  not  have  withstood  the  .trials  to 
which  it  has  been  exposed.  /That  it  has  done  so  is 
owing  to  the  fact  that  there  is  in  reality  in  the 
United  States  an  Executive  Power  for  time  of 
peace,  and  another  adapted  to  times  of  commotion 
or  war.  ^  Then,  so  far  from  concurring  in  the  opin- 
ion of  the  commentator,  those  who  study  American 
institutions  will  be  lead  to  conclude  that  the  article 
of  the  Constitution  which  is  the  subject  of  his 
criticism  is  one  of  the  most  skillfully  conceived,  by 
reason  of  the  very  general  and  somewhat  indefinite 
phraseology  used  by  its  framers. 

1  Upshur  on  Nature  and  Character  of  our  Federal  Government. 
£d.  1863,  pp.  116-119. 


IN  THE  UNITED  STA  TES.  'L}Si\ 

Indeed,  the  organization  of  the  Executive  Power 
in  a  republican  form  of  government  always  presents 
the  greatest  difficulties.  If  its  powers  are  defined 
with  exact  precision,  events  may  at  some  critical 
juncture  occur  which  will  baffle  all  calculations. 
Then  the  republic  will  be  placed  between  the  dan- 
ger of  violating  its  fundamental  law  and  the  impe- 
rious necessities  of  public-  safety.  Now  it  is  much 
to  be  feared  that,  in  moments  of  imminent  peril, 
the  majority  would  decide  in  favor  of  usurpations 
of  power,  and  suffer  the  Constitution  to  be  sacri- 
ficed. \The  only  means  of  avoiding  these  dangers 
is  to  mould  the  fundamental  law  so  that  the  Presi- 
dent, always  prominent  in  times  of  crisis,  may  be 
able  to  stretch  his  privileges,  in  case  circumstances 
shall  absolutely  require  it].. 

It  is  needless  to  dwell  upon  this  point ;  political 
history  shows  its  full  importance.  Why  have  so 
many  written  constitutions,  monarchical  or  repub- 
lican, proved  utter  failures?  It  is  because  they 
have  almost  always  been  constructed  so  logically 
that  their  framers  attempted  to  provide  for  all  the 
contingencies  of  an  unknown  future.  They  thus 
exhausted  the  resources  of  their  genius  in  an  im- 
practicable programme ;  but  the  work  so  labori- 
ously constructed  was  overthrown  by  the  first 
political  convulsion  that  occurred.  Happily  for 
the  United  States,  the  framers  of  the  Constitution 
pursued  an  entirely  different  course;  they  vested 


154  THE  EXECUTIVE  POWER 

certain  powers  in  the  President,  but  did  not  declare 
that  these  powers  should  form  a  limit  to  his 
authority.  Besides,  the  prerogatives  thus  conferred 
upon  him  admit  on  certain  occasions  of  an  almost 
indefifiite  extension. 

In  examining  the  constitutional  provisions  rela- 
tive to  the  President,  it  is  first  of  all  to  be  noticed 
that  he  has  certain  powers  which  belong  properly 
to  him  alone.  Others,  on  the  contrary,  are  exer- 
cised under  the  supervision  of  a  great  council  of 
the  government  which  the  Constitution  has  associ- 
ated with  him.  If  he  shall  take  care  that  the  laws 
be  faithfully  executed,  command  the  army  and 
navy  of  the  United  States,  receive  ambassadors  and 
other  public  ministers,  and  grant  reprieves  and 
pardons  for  offenses  against  the  United  States 
without  being  subject  to  any  restraint,  he  is  not 
allowed  to  conclude  treaties,  nor  appoint  the  prin- 
cipal public  functionaries,  without  the  concurrent 
action  of  the  Senate.  In  such  matters,  that  high 
assembly  no  longer  forms  a  part  of  the  legislative 
power,  but  is  transformed,  so  to  express  it,  into  a 
sort  of  family  council,  whose  advice  the  President 
is  required  to  take.' 

It  is  fitting,  then,  first  to  examine  into  those 
powers  conferred  solely  on  the  President,  and  after- 
ward allude  to  those  which  he  cannot  execute  with- 
out the  intervention  of  the  Senate. 

Pursuant  to  the  constitutional  provisions  above 


IN  THE  UNITED  STATES.  155 

mentioned,  Congress  organized,  at  the  formation- of 
the  Government,  the  principal  executive  depart- 
ments which  were  to  be  placed  under  the  immediate 
direction  of  the  President. 

An  act  of  July  27th,  1789,  created  the  State  De- 
partment, and  confided  to  it  the  conduct  of  foreign 
affairs.  Another  act,  of  September  15th  of  the 
same  year,  conferred  upon  it  certain  other  powers 
of  a  different  nature,  and  among  them  that  of  pro- 
mulgating the  laws.  Its  jurisdiction  has  been  still 
further  extended  by  subsequent  legislation. 

The  organization  of  the  Treasury  Department 
dates  September  2d,  1789.  The  act  of  Congress  cre- 
ating it  defined  the  extent  of  its  powers,  and  charged 
it  with  the  management  of  the  federal  finances. 

The  War  Department  was  established  the  7th  of 
August  of  the  same  year.  Since  then  its  powers 
have  been  modified,  augmented  or  diminished,  ac- 
cording to  the  necessities  of  the  hour. 

The  Navy  Department  was  organized  April  21st, 
1806. 

The  general  post-office  was  formed  into  a  separate 
department  March  3d,  1825. 

Finally,  the  Department  of  the  Interior  was  con- 
stituted by  the  act  of  March  3d,  1849. 

Thus,  the  navy,  the  postal  service  and  the  branches 
of  the  service  under  the  supervision  of  the  Depart- 
ment of  the  Interior  were  successively  detached 
from  the  State,  Treasury,  and  War  Departments. 


IS6  THE  EXECUTIVE  FOWER 

But  this  is  not  all.  At  the  formation  of  the 
government  Congress  provided  for  the  appointment 
of  a  functionary,  whose  special  duty  it  is  to  inter- 
pret the  laws,  act  as  the  legal  adviser  of  the  Presi- 
dent and  heads  of  departments,  and  represent  the 
United  States  before  the  Supreme  Court.  Such  is 
the  province  of  the  Attorney-general,  as  declared 
by  an  act  of  September  4,  1789.  He  is  at  the 
same  time  a  member  of  the  Cabinet,  and  a  sort 
of  solicitor-general  before  the  Supreme  Court,  and 
was  destined,  in  the  legislative  thought,  to  play  a 
part  of  the  highest  importance  near  the  executive. 
Experience  has  since  proved  that  the  Attorney- 
general  is  in  reality  one  of  the  most  considerable 
functionaries  of  the  government.  ^ 

Thus  the  creation  of  these  several  departments 
places  under  the  immediate  direction  of  the  Execu- 
tive Power  foreign  affairs,  finances,  the  army,  the 
navy,  the  post-offices,  the  branches  of  the  service 
relative  to  the  management,  sale  and  disposal  of 
the  public  lands,  to  pensions,  to  patents  for  inven- 
tions in  the  useful  arts,  and  to  Indian  affairs.  It 
likewise  secures  a  legal  adviser  to  the  President 
and  a  representative  of  the  entire  goyernment 
before  the  Supreme  Court.  In  a  word,  Congress, 
in  organizing  the  public  administration,  confided  to 
the  Executive  Power  the  duty  of  directing  it.     In 

1  Brightly 's  Digest.      See  the  table  of  contents  and  the  laws 
which  are  therein  cited. 


IN  THE  UNITED  STATES.  157 

order  to  ^ee  how  it  has  been  fulfilled  it  is  necessary 
to  pass  in  review  the  foreign  policy,  the  organiza- 
tion of  the  army  and  navy,  the  financial  system  of 
the  government  and  its  jurisprudence  as  established 
by  the  Attorney-general. 

FOREIGN  AFFAIRS. 

As  Pinckney  said  in  the  convention  of  1787, 
those  who  devote  themselves  to  the  great  work  of 
forming  the  American  republic  must  renounce,  in 
the  conduct  of  foreign  affairs,  the  traditions  of 
European  policy.  So  the  relations  of  the  new 
republic  with  foreign  powers  should  be  as  slight  as 
the  essential  interests  of  the  country  would  allow. 
Such  was  the  principle  that  Washington  was  soon 
to  apply.  Events  soon  forced  him  to  determine 
what  should  be  the  foreign  policy  of  the  United 
States.  At  the  time  when  the  Federal  Govern- 
ment went  into  operation  the  states  general  were 
on  the  point  of  meeting  at  Yersailles,  so  that  almost 
at  the  same  date  when  the  national  life  of  the  United 
States  commenced,  France  was  preparing  those 
changes  which  were  so  seriously  to  affect  the  insti- 
tutions of  the  old  world.  As  the  French  revo- 
lution progressed,  it  attracted  more  and  more 
deeply  the  attention  of  the  United  States.  Had 
not  the  co-operation  of  France  been  of  incalcu- 
lable advantage  to  the  thirteen  colonies  ?  Was 
there  not  apparently  a  perfect  similarity  between 


158  THE  EXECUTIVE  POWER 

the  principles  proclaimed  on  the  American  conti- 
nent in  1776,  and  those  imposed  by  the  Constituent 
Assembly  on  French  royalty  ? 

In  fact,  the  sympathies  of  a  great  number  of 
Americans  were  enlisted  in  the  movements  of  which 
France  was  the  theater.  Bat  in  1793  the  position 
of  the  United  States  had  changed.  They  were  to 
consider  if  the  war  which  had  just  broken  out  be- 
tween the  French  convention  and  England  would 
not  be  likelj'-  to  constrain  them  to  take  an  active 
part  in  these  hostilities.  On  the  one  side  was  France, 
who  had  given  the  aid  of  her  sword  to  the  cause 
of  American  independence ;  on  the  other,  England, 
against  whom  the  thirteen  colonies  had  sustained 
a  long  struggle.  What  was  Washington  to  do  ? 
Under  these  decisive  circumstances  he  announced, 
for  the  first  time  in  the  world,  the  principle  that 
"every  nation  has  a  right  to  remain  neutral  whilst 
other  nations  are  at  war." 

"  The  critical  and  irritable  state  of  things  in 
France,"  says  his  biographer,  "  began  so  materially 
to  affect  the  United  States  as  to  require  an  exer- 
tion of  all  the  prudence  and  all  the  firmness  of  the 
government.  The  10th  of  August,  1792,  was  suc- 
ceeded in  that  nation  by  such  a  state  of  anarchy  and 
by  scenes  of  so  much  blood  and  horror ;  the  nation 
was  understood  to  be  so  divided  with  respect  to  its 
future  course,  and  the  republican  party  was  threat- 
ened by  such  formidable  external  force,  that  there 


IN  THE  UNITED  STATES.  159 

was  mucli  reason  to  doubt  whether  the  fallen 
monarch  would  be  finally  deposed,  or  reinstated 
with  a  greater  degree  of  splendor  and  power  than  the 
constitution  just  laid  in  ruins  had  assigned  to  him." 

Gouverneur  Morris  then  represented  the  United 
States  in  France.  President  Washington,  send- 
ing him  instructions,  said  "  the  American  admin- 
istration entertained  no  doubt  of  the  propriety 
of  recognizing  the  existing  authority  of  France, 
whatever  form  it  might  assume ;  that  every  nation 
possessed  a  right  to  govern,  itself  according  to  its 
own  will,  to  change  its  institutions  at  discretion, 
and  to  transact  its  business  through  whatever 
agents  it  might  think  proper " 

"  Such  are  the  principles  upon  which  the  Ameri- 
can government  is  itself  established,  and  it  cannot 
deny  to  another  nation  the  right  to  apply  them." 
Beside,  the  United  States  Minister  was  to  assure 
the  French  people  that  America  entertained,  for 
them  the  sincerest  sympathy. 

"  Yet,"  he  adds,  "  that,  devoted  to  the  principles 
of  real  liberty,  and  approving  unequivocally  the  re- 
publican form  of  government,  he  hoped  for  a  favor- 
able result  from  the  efforts  which  were  making  to 
establish  that  form  by  the  great  ally  of  the  United 
States,  but  was  not  so  transported  by  those  efforts 
as  to  involve  his  country  in  their  issue."  Washing- 
ton also  observed  that  the  aid  to  American  inde- 
pendence had  been  given  by  the  old  royalty. 


i6o  THE  EXECUTIVE  POWER 

It  was  tlieii  the  fixed  pujpose  of  the  President  to 
maintain  the  neutrality  of  the  United'  States,  how- 
ever general  the  war  might  be  in  Europe.  In  the 
meantime,  in  the  beginning  of  April,  1793,  the  fed- 
eral government  was  apprised  of  the  declaration 
of  war  by  France  against  England  and  Holland. 
This  event  awakened  all  the  ardor  of  feeling  that 
ten  years  of  peace  had  not  extinguished.  The  pre- 
judices against  England,  which  had  become  so  deep- 
seated  during  the  revolutionary  war,  seemed  again 
to  revive.  A  great  portion  of  the  American  people 
considered  it  criminal  for  the  United  States  to  re- 
main indifferent  spectators  of  a  conflict  between 
their  former  enemy  and  the  French  Republic. 

"  The  feeling  upon  this  occasion  was  almost  uni- 
versal  the  war  was  confidently  and  generally 

pronounced  a  war  of  aggression  on  the  part  of  Great 
Britain,  undertaken  for  the  sole  purpose  of  imposing 

a  monarchical  government  on  the  French  people 

Yet  the  disposition  to  engage  in  the  war  was  far 
from  being  general."  i 

It  was  for  President  Washington  to  decide  what 
should  be  the  foreign  policy  of  the  republic.  Was 
he  to  be  led  away  by  the  popular  current  ?  Could 
he,  on  the  contrary,  resist  it?  A  statesman,  who 
bears  with  honor  the  greatest  historic  name  of  the 
United  States,  Mr.  Charles  Francis  Adams,  describes 
in  the  following  manner  what  then  took  place  : 

1  The  Life  of  Greorge  Washington,  by  John  Marshall,  Vol.  V.,  p. 
898  el  seq. 


-IN  THE  UNITED  STATES.  i6i 

"  To  that  council  Washington  had  carefully  elect- 
ed two  of  the  ablest  and  best  qualified  statesmen 
that  the  great  struggle  for  liberty  had  produced,  the 
only  drawback  to  which  was  the  misfortune  that 
they  scarcely  ever  could  agree ;  the  one,  abounding 
in  capacity,  leaned  to  speculation  and  theory,  to 
which  he  sought  to  accommodate  facts ;  the  other, 
equally  gifted,  preferred  to  view  the  facts  first,  and 
from  them  form  his  theories  afterward.     The  first 

had  a  synthetic,  the  other  an  analytic,  mind Yet 

between  these  discordant  elements  it  was  .the  pecu. 
liar  faculty  of  Washington  to  be  able  to  educe  from 
each  most  valuable  contributions  to  the  regulation 
of  his  policy.  They  neVer  served  him  better  than 
in  the  present  emergency.  The  sixteen  questions 
were  submitted  on  the  18th  of  April,  1793.  On  the 
next  day  all  four  of  the  Cabinet  had  united  in  an 
affirmative  answer  to  the  first,  which  was  the  essen- 
tial one." 

It  ran  in  the  following  words:  "Shall  a  procla- 
mation issue  for  the  purpose  of  preventing  inter- 
ferences of  the  citizens  of  the  United  States  in  the 
war  between  France  and  Great  Britain  ?"  Another 
question — whether  the  minister,  known  to  be  on 
his  way  as  a  representative  from  the  new  republic, 
should  be  received,  was  also  unanimously  agreed 
to.  And  here  the  President  was  fai-n  to  stop ;  for 
the  opposing  forces,  Jefferson  and  Hamilton,  fell* 
into  such  differences  upon  the  remaining  questions 
11 


i62  THE  EXECUTIVE  POWER 

that  it  was  weeks  before  they  got  through  their 
expositions.  This  was  of  no  consequence,  as  from 
the  one  answer  he  laid  the  great  foundation  of  his 
policy.  A  proclamation  was  immediately  drawn 
up  and  issued  on  the  2 2d  of  April,  1793.  The 
substantial  part  was  in  these  words  : 

*'  Whereas,  it  appears  that  a  state  of  war  exists 
between  Austria,  Prussia,  Sardinia,Great  Britain  and 
the  United  Netherlands  on  the  one  part,  and  France 
on  the  other ;  and  the  duty  and  interest  of  the  United 
States  require  that  they  should,  with  sincerity  and 
good  faith,  adopt  and  pursue  a  conduct  friendly  and 
impartial  toward  the  belligerent  powers^  Wash- 
ington then  gave  notice  of  the  neutrality  of  the 
United  States ;  and  he  warned  "  the  citizens  of  the 
United  States  carefully  to  avoid  all  acts  and  pro- 
ceedings whatsoever  which  may  in  any  manner 
tend  to  contravene  such  disposition."  ^ 

At  -the  opening  of  the  following  session  of  Con- 
gress, the  2d  December  of  the  same  year,  the 
President  announced  to  Congress  the  policy  that  he 
had  adopted.  At  the  very  time  when  he  had  just 
published  this  proclamation  of  April  22d,  contain- 
ing almost  all  the  foreign  policy  of  the  United 
States,  the  minister  of  the  French  republic  arrived 
at  Charleston. 

Edmund  Genet,  brother  of  Madam  Campan,  had 
• 

I  Address  of  Hon.  Charles  Francis  Adams,  delivered  before  the 
New  York  Historical  Society,  Dec.  13th,  1870. 


IN  THE  UNITED  STA  TES.  163 

received  some  diplomatic  training  under  the  old 
regime;  his  last  post  had  been  that  of  Charge 
d'affaires  to  Kassia.  The  revolutionary  attitude 
which  he  then  assumed  had  brought  him  to  the 
notice  of  the  dominant  party  in  Paris.  As  his 
instructions  directed  him  to  neglect  nothing  to 
force  the  United  States  to  take  part  in  the  war,  he 
thought  it  good  policy  to  land  first  at  Charleston. 
He  supposed  that  in  this  city,  remote  from  th6 
seat  of  government,  he  could  readily  render  him- 
self master  of  the  situation.  He  at  once  commenced 
distributing  commissions  and  arming  privateers. 

During  the  nine  months  that  his  mission  lasted, 
Genet  either  tried  to  elude  the  neutrality  policy  of 
the  government,  or  opposed  it  directly.  Every- 
where he  labored  to  arouse  popular  prejudices 
against  the  administration,  and  everywhere  he  was 
met  by  its  unflinching  determination.  It  is  to  be 
regretted  that  no  one  has  ever  taken  the  pains  to 
write  a  circumstantial  account  of  the  diplomacy  of 
this  French  sans-culotte  ;  his  pompous  declarations, 
his  revolutionary  verbosity  ought  to  be  contrasted 
with  the  calm  resolution  and  dignified  language  of 
the  rulers  of  the  American  republic.  But  how- 
ever much  he  may  have  succeeded  in  exciting  the 
vulgar  passions  of  the  masses,  he  could  not  tri- 
umph over  the  President  or  his  Cabinet.  At  the 
end  of  several  months  Washington  peremptorily- 
demanded  and  obtained  his  recall. 


i64  THE  EXECUTIVE  POWER 

The  neutrality  of  the  United  States  had  thus 
been  maintained  in  their  relations  with  France.  It 
was  now  to  be  jeopardized  by  England.  This  latter 
nation  had  for  the  preceding  ten  years  maintained  an 
attitude  of  sullen  indifference.  When  the  armed 
struggle  commenced  between  her  and  France,  an 
order  in  council  struck  a  cruel  blow  at  the  com- 
merce of.  the  United  States.  At  the  same  time 
hostile  indications  were  manifested  in  Canada. 
Congress  became  in  turn  excited,  and  retaliatory 
measures  were  proposed ;  the  times  were  critical. 

Washington  watchecT  the  progress  of  events 
with  anxious  attention.  He  determined  to  make 
a  last  effort  in  favor  of  his  policy  of  neutrality. 
With  this  view  he  created  a  special  mission  to  Eng- 
land, and  confided  it  to  John  Jay,  Chief  Justice  of 
the  United  States.  A  treaty  was  soon  concluded, 
and  hostilities  thus  avoided.  It  was  no  sooner 
signed,  however,  than  it  became  the  subject  of  vio- 
lent opposition.  The  press  abounded  in  assaults 
upon  it,  and  popular  assemblies  denounced  it  in 
their  resolutions.  Washington,  on  one  occasion, 
made  the  following  reply : 

"  Without  a  predilection  for  my  own  judgment, 
I  have  weighed  with  attention  every  argument 
which  has  at  any  time  been  brought  into  view. 
But  the  Constitution  is  the  guide  which  I  never 
can  abandon.  It  has  assigned  to  the  President  the 
power  of  making  treaties  with  the  advice  and  con- 


IN  THE   UNITED  STATES.  165 

sent  of  the  Senate.  It  was  doubtless  supposed  that 
these  two  branches  of  government  would  combine, 
without  passion  and  with  the  best  means  of  infor- 
mation, those  facts  and  principles  upon  which  the 
success  of  our  foreign  relations  will  always  depend  ; 
that  they  ought  not  to  substitute  for  their  own  con 
viction  the  opinions  of  others,  or  to  seek  truth- 
through  any  channel  but  that"  of  a  temperate  and 
well  informed  investigation.  Under  this  persua- 
sion I  have  resolved  on  the  manner  of  executing: 
the  duty  before  me;  to  the  high  responsibility 
attached  to  it  I  freely  submit."^ 

Thus  did  "Washington  inaugurate  the  neutrality 
of  the  United  States ;  he  had  maintained  it  with 
regard  to  France  and  afterward  caused  it  to  be 
accepted  by  England.  But  his  task  was  not  yet 
completed.  The. effect  produced  in  France  by  the 
treaty  concluded  between  the  United  States  and 
England  was,  as  might  have  been  expected, 
extremely  unfavorable.  The  directory  manifested, 
as  the  convention  had  done,  the  utmost  resentment. 
At  that  moment  General  Bonaparte  triumphed  in 
Italy ;  the  French  government  then  thought  itself 
in  a  condition  to  make  unreasonable  demands  upon 
the  United  States.  It  was  also  fully  aware  that  the 
foreign  policy  of  Washington  was  violently  attacked 
by  portions  of  the  American  people. 

In  the  meantime  Washington  retired  from  pub- 

1  Washington's  Writings,  edited  by  Sparks,  Vol.  I.,  p.  505. 


i66  THE  EXECUTIVE  POWER 

lie  life,  bequeathing  to  his  country  his  foreign 
policy.  It  is  fully  explained  in  a  memorable  paper, 
the  farewell  address  of  that  great  man. 

"  In  the  execution  of  such  a  plan,"  said  he,  "noth- 
ing is  more  essential  than  that  permanent,  inveterate 
antipathies  against  particular  nations,  and  passionate 
attachments  for  others,  should  be  excluded,  and  that, 
in  place  of  them,  just  and  amicable  feelings  toward 
all  should  be  cultivated.  The  nation  which  indulges 
toward  another  an  habitual  hatred,  or  an  habitual 
fondness,  is  in  some  degree  a  slave.  It  is  a  slave 
to  its  animosity  or  to  its  affection,  either  of  which 
is  sufficient  to  lead  it  astray  from  its  duty  and  its 
interest.  Antipathy  in  one  nation  against  another 
disposes  each  more  readily  to  offer  insult  and  injury, 
to  lay  hold  of  slight  causes  of  umbrage,  and  to  be 
haughty  and  intractable  when  accidental  or  trifling 
occasions  of  dispute  occur.  Hence  frequent  colli- 
sions, obstinate,  envenomed  and  bloody  contests. 
The  nation,  prompted  by  ill  will  and  resentment, 
sometimes  impels  to  war  the  government,  contrary 
to  the  best  calculations  of  policy.  The  government 
sometimes  participates  in  the  national  propensity, 
and  adopts,  through  passion,  what  reason  would 
reject " 

"So,  likewise,  a  passionate  attachment  of  one 
nation  to  another  produces  a  .variety  of  evils.  Sym- 
pathy for  the  favorite  nation,  facilitating  the  illu- 
sion of  an   imaginary  common  interest,  in   cases 


IN  THE  UNITED  STATES.  167 

where  no  real  common  interest  exists,  and  infusing 
into  one  the  enmities  of  the  other,  betrays  the 
former  into  a  participation  in  the  quarrels  and  wars 
of  the  latter,  without  adequate  inducement  or  justi- 
fication. It  leads  also  to  concessions  to  the  favorite 
nation  of  privileges  denied  to  others,  which  is  apt 
doubly  to  injure  the  nation  making  the  concessions, 
by  unnecessarily  parting  with  what  ought  to  have 
been  retained,  and  by  exciting  jealousy,  ill  will  and 
a  disposition  to  retaliate,  in  the  parties  from  whom 
equal  privileges  are  withheld ;  and  it  gives  to  ambi- 
tious, corrupted,  or  deluded  citizens  (who  devote 
themselves  to  the  favorite  nation),  facility  to  betray 
or  sacrifice  the  interests  of  their  own  country  with- 
out odium,  sometimes  even  with  popularity " 

"  Against  the  insidious  wiles  of  foreign  influence 
(I  conjure  you  to  believe  me,  fellow  citizens,)  the 
jealousy  of  a  free  people  ought  to  be  constantly 
awake;  since  history  and  experience  prove  th^ 
foreign  influence  is  one  of  the  most  baneful  foes  of 

republican   government.'. "     "The  great  rule 

of  conduct  for  us,  in  regard  to  foreign  nations,  is 
in  extending  our  commercial  relations,  to  have  with 
them  as  little  political  connection  as  possible.  So 
far  as  we  have  already  formed  engagements,  let 

them   be  fulfilled   with  perfect  good  faith 

Here  let  us  stop." 

"Europe  has  a  set  of  primary  interests  which 
to  us  have  no,  or  a  yQvj  remote,  relation.     Hence, 


1 68  THE  EXECUTIVE  POWER 

she  must  be  engaged  in  frequent  controversies,  the 
causes  of  which  are  essentially  foreign  to  our  con- 
cerns. Hence,  therefore,  it  must  be  unwise  in  us 
to  implicate  ourselves,  by  artificial  ties,  in  the  ordi-' 
nary  vicissitudes  of  her  politics,  or  the  ordinary 
combinations  and  collisions  of  her  friendships  or 
enmities." 

"Our  detached  and  distant  situation  invites  and 
enables  us  to  pursue  a  different  course.  If  we 
remain  one  people,  under  an  efficient  government, 
the  period  is  not  far  off  when  we  may  defy  mate- 
rial injury  from  external  annoyance;  when  we 
may  take  such  an  attitude  as  will  cause  the  neu- 
trality we  may  at  any  time  resolve  upon  to  be 
scrupulously  respected  ;  when  belligerent  nations, 
under  the  impossibility  of  making  acquisitions 
upon  us,  will  not  lightly  hazard  the  giving  us 
provocation ;  when  we  may  choose  peace  or  war, 
as  our  interest,  guided  by  justice,  shall  counsel." 

"  Why  forego  the  advantages  of  so  peculiar  a 
situation  ?  Why  quit  our  own  to  stand  upon  for- 
eign ground  ?     Why  be  interweaving  our  destiny 

with  that  of  any  part  of  Europe? "     "It  is 

our  true  policy  to  steer  clear  of  permanent  alliances 
with  any  portion  of  the  foreign  world " 

Washington  thus  explained  in  this  immortal 
"  address "  the  policy  which  he  had  created  and 
which  the  United  States  still  upholds.  Since  his 
day  the  most  celebrated  American  state  papers  on 


IN  THE   UNITED  STATES.  169 

foreign  affairs  have  been  but  commentaries  on  this 
text.  Successive  parties  have  held  power,  and, 
although  differing  widely  on  the  domestic  policy 
of  the,  country,  have  all  concurred  in  regard  to  its 
foreign  policy.  In  the  midst  of  the  quadrennial 
changes  of  the  executive,  a  uniform  line  of  conduct 
has  been  maintained  at  the  State  Department.  The 
statesmen  who  have  been  at  its  head,  from  Jefferson 
down  to  the  present  moment,  have  found,  on  enter- 
ing it,  the  memories  of  their  predecessors,  and  to 
this  tradition,  thus  transmitted  intact  for  nearly  a 
century,  the  federal  government  is  indebted  for  its 
almost  unvarying  diplomatic  success. 

It  is  not  be  re  proposed  to  narrate  a  history  so 
full  of  interest  and  instruction.  It  is  sufficient  to 
remark  tbat  the  application  of  the  doctrines  incul- 
cated by  "Washington  enabled  Adams  and  Jeffer- 
son to  adjust  the  irritating  questions  then  pending 
between  the  United  States  and  France.  These 
last  acts  completed  the  system  of  American  neu- 
trality, and  led  to  its  acceptance  by  Europe. 

Since  then,  how  many  events  have  taken  place ! 
What  serious  conflicts  have  burst  forth !  But 
despite  these  violent  excitements,  the  United  States 
have  never  deviated  from  this  settled  policy,  and 
it  is  proper  -to  add,  that  by  their  patience  and  mod- 
eration they  have  almost  always  accomplished 
their  objects.  The  executive  is  specially  entitled 
to  the  honor  of  initiating  and  adhering  to  it,  and 


I70  THE  EXECUTIVE  POWER 

in  this  Washington  and  his  successors  'have  been 
the  true  representatives  of  the  people.  It  was  so 
clearly  foreshadowed  in  the  debates  of  the  Conven- 
tion of  1787,.  that  he  who  runs  may  read,  and 
Washington,  who  presided  over  that  body,  may 
have  derived  from  them  his  first  conceptions  on  the 
subject.  But  if  the  direction  of  foreign  affairs 
had  been  confided  to  Congress,  it  is  almost  certain 
that  the  United  States  would  have  been  drawn  into 
European  complications.  The  most  distinctive 
portion,  perhaps,  of  their  policy  would  soon  have 
disappeared,  and  their  condition  have  become 
almost  similar  to  that  of  other  nations.  Could 
they  then  have  at  once  dispensed  with  a  large 
standing  army,  and  a  very  great  increase  of  their 
navy  ?  Gradually  military  spirit,  giving  birth  in 
its  turn  to  a  passion  for  conquest,  would  have  been 
fostered,  and  American  liberty  might  have  perished 
in  the  shock  of  arms. 

The  policy  of  neutrality,  which  appeared  to  the 
framers  of  the  Constitution  as  an  inevitable  conse- 
quence of  republican  institutions,  is  probably  des- 
tined sooner  or  later  to  a  general  acceptance  in  the 
world. 

The  geographical  position  of  the  United  States 
has  doubtless  singularly  favored  the  independence 
of  their  foreign  relations,  but  this  cause  alone  would 
not  suffice  for  an  explanation.  •'  Current  events  in 
England  show  that  in  proportion  as  countries  be- 


IN  THE  UNITED  STATES.  171 

come  more  democratic,  and  through  a  progressive 
movement  approach  more  closely  to  republican  in- 
stitutions, they  lose  almost  insensibly  a  taste  for 
the  policy  of  diplomacy.  The  studied  combinations, 
the  treaties  of  alliance  secretly  prepared,  the  great 
schemes  of  men  of  genius,  who,  like  Eichelieu,  hadso 
admirably  re-adjusted  Europe,  wars  of  equilibrium 
and  of  conquest  are  all  of  a  nature  essentially  aris- 
tocratic. With  the  removal  of  the  last  traces  of 
germanic  feudal  institutions,  will  also  disappear  all 
that  has  fostered  the  grandeur  of  the  societies  in 
which  they  existed.  It  remains  to  be  seen  how 
this  transformation,  which  the  American  democracy 
was  the  first  fully  to  accept,  and  which  England, 
owing  to  her  insular  position,  regards  with  increas- 
ing favor,  can  be  effected  on  the  continent  of  Europe. 
Will  the  democratic  spirit  destroy  those  almost 
feudal  societies,  which  still  cling  to  the  traditions 
of  the  past,  or  will  it,  on  the  contrary,  be  conquered 
and  suppressed  ?  But  the  solution  of  this  knotty 
problem  will  not  be  attempted  here.  By  the  side 
of  old  Europe  new  democratic  communities  are  in 
process  of  formation  at  different  points  of  the  globe, 
thanks  to  the  indo-germanic  emigration  which  is 
spreading  over  the  whole  world. 
.  Sir  Charles  Bilke,  who  has  recently  visited  them, 
has  given  a  most  interesting  account  of  his  voyages 
in  "The  Greater  Britain."  In  the  same  category 
with  the  United  States  he  places  New  Zealand  and 


172  THE  EXECUTIVE  POWER 

Australia,  societies  which  are  developing  with 
prodigious  rapidity,  and  where  a  new  spirit  is 
breathing  in  full  liberty.  In  all  probability  these 
people  of  yesterday  are  destined  to  perform  one  day 
a  leading  part  in  the  world ;  and  among  them  will 
naturally  prevail  the  doctrines  of  neutrality  which 
sprung  from  the  American  democracy,  and  received 
their  shape  from  Washington. 

It  would  not  certainly  be  accurate  tb  ^2,j  that 
the  executive,  left  to  itself,  would  not  have  made 
frequent  mistakes  in  conducting  foreign  affairs; 
that  despite  the  teachings  of  its  cherished  tradition 
it  would  not  have  yielded  at  times  to  fatal  influen- 
ces; but  the  framers  of  the  Constitution,  whilst 
wisely  leaving  to  that  branch  of  the  government 
the  initiative,  placed  its  action  u.nder  the  supervi- 
sory control  of  the  Senate.  It  is  only  by  and  with 
the  consent  of  that  body  that  the  President  can  con- 
tract international  engagements;  a  judicious  ar- 
rangement, to  which  special  reference  will  hereafter 
be  made.  The  foreign  policy  of  the  United  States 
has  relieved  them  from  the  necessity  of  keeping  up 
a  large  standing  army.  The  system  adopted  in  that 
regard  has  been  uniformly  maintained.  It  may  be 
applied  as  well  to  sea  as  to  land  forces,  and  has 
essentially  affected  the  financial  policy  of  the  gov.- 
ernment. 

THE   ARMY   AND  NAVY. 

The  convention  of  1787  was  not  in    favor   of 


IN  THE  UNITED  STATES,  173 

maintaining  standing  armies.  It  deemed  a  military 
spirit  to  be  incompatible  witb  a  republican  form  of 
government.  The  United  States  was,  however,  then 
surrounded  by  European  colonies ;  it  had  also  to 
face  the  difficulties  that  the  Indians  would  not  fail 
to  stir  up.  It  was  therefore  necessary  to  organize 
a  sufficient  force.  The  great  maritime  and  commer- 
cial interests  of  a  growing  country  also  required 
protection,  and  created  the  necessity  for  a  navy. 
"America  united,"  said  Mr.  Madison,  "with  a  hand- 
ful of  troops,  or  without  a  single  soldier,  exhibits 
a  more  forbidding  posture  to  foreign  ambition  than 
America  disunited,  with  a  hundred  thousand  vete- 
rans ready  for  combat."  But  although  believing 
that  the  Union,  cemented  and  secured  by  the  Con- 
stitution, obviated  the  necessity  of  large  standing 
armies,  and  that  liberty  would  be  crushed  between 
them  and  perpetual  taxes,  he  admitted  the  propri- 
ety of  organizing  and  maintaining  such  land  and 
sea  forces  as  were  indispensable.  He  thought  that 
they  would  work  no  danger  to  free  institutions,  and 
declared  that  suspicion  herself  ought  to  blush,  in 
pretending  that  the  representatives  of  the  United 
States,  elected  freely  by  the  whole  hody  of  the  peo- 
ple, every  second  year^  could  not  be  safely  intrusted 
with  a  discretion  over  the  appropriations  for  "  rais- 
ing and  supporting  armies,"  expressly  limited  to  the 
short  period  of  two  years  !  ^ 

1  The  "  Federalist,"  p.  278  et  seq. 


174  THE  EXECUTIVE  POWER 

In  this  he  was  evidently  mistaken.  Parliaments 
votiqg  annually  contingents,  and  determining  the 
budget  for  the  army  and  navy,  have  in  other 
countries  been  expelled  by  military  conspiracies 
from  the  halls  where  they  deliberated.  Thus  the 
American  legislator  has  felt  that  the  precautions 
taken  by  the  Constitution  were  not  sufficient,  and 
he  has  therefore  added  others  vastly  more  effica- 
cious. The  army  has  been  limited  to  a  very  small 
number  of  regiments,  stationed  at  detached  posts 
over  the  whole  United  States,  and  more  especially 
distributed  in  the  immense  deserts  of  the  west.  In 
reality,  when  the  country  is  at  peace,  the  presence 
of  the  army  is  not  felt ;  the  citizen  rarely  meets  or 
comes  in  contact  with  a  soldier.  The  eminent 
officers,  who  generally  command  special  corps,  do 
not  in  a  greater  degree  arrest  public  attention ; 
almost  always  as  capable  as  modest,  they  cherish 
the  military  spirit  and  traditions,  and  keep  them- 
selves aloof  from  political  associations.  They 
form  a  very  small  circle,  and  rarely  aspire  to  go 
beyond  it. 

Besides,  the  standing  army  is  deprived  of  the 
right  of  suffrage.  Thus,  so  far  from  desiring  to 
make  use  of  it,  demagogues  are  at  a  loss  for  epithets 
strong  enough  to  express  their  dislike  for  it.  This 
state  of  things  places  it  in  a  very  peculiar  position. 
It  almost  feels  that  it  ought  not  to  make  itself  con- 
spicuous, and  that  its  very  existence  depends  on  its 


IN  THE  UNITED  STATES.  I75 

extreme  reserve.  It  is  also  well  to  notice  that, 
although  the  President  is  commander-in-chief,  yet 
he  cannot  make  an  instrument  of  the  army.  The 
regulations,  which  may  be  called^  organic,  of  the 
War  Department,  determine  the  different  posts  that 
the  army  is  to  occupy.  He  has  doubtless  a  right 
to  transfer  a  regiment,  but  he  could  not  order  it  to 
Washington  without  at  once  exciting  an  opposition 
which  he  could  scarcely  resist.  In  a  word,  public 
liberty  cannot  be  threatened  by  an  army  so  organ- 
ized that  its  approach  to  the  capital  is  impossible. 
In  reality,  the  defensive  force  of  the  United  States 
does  not  depend  on  the  regular  army.  In  moments 
of  crisis  the  entire  people  are  called  to  arms.  The 
Union  contains  within  its  broad  territories  a  popu- 
lation admirably  adapted  to  war.  The  man  best 
fitted  for  military  service  is  incontestably  he  who 
unites  to  a  high  measure  of  intelligence  and  of 
education  that  habit  of  self-dependence  which  is 
gradually  lost  in  those  communities  where  the 
principle  of  a  division  of  labor  has  been  fully  devel- 
oped. The  settler  in  the  forest  or  the  plains,  whose 
arm  has  felled  the  trees,  built  his  cabin  and  guided 
his  plowshare  through  the  virgin  soil,  who  has 
lived  with  a  gun  in  one  hand  and  an  ax  in  the 
other,  and  breasted  unnumbered  perils,  may  become, 
almost  in  a  twinkling  of  an  eye,  a  first-class  soldier. 
Inured  to  fatigue,  a  stranger  to  the  luxuries  of 
life,  he  can  make  forced  marches,  and  will  soon 


175  THE  EXECUTIVE  POWER 

learn  to  handle  tlie  fire-arms  whicli  modern  sci- 
ence has  perfected,  and  to  face  the  foe  with  the 
coolness  of  a  veteran.  The  United  States  have  at 
their  disposal  this  admirable  'personnel  whenever  it 
is  needed. 

The  question  was  asked  some  years  ago  of  that 
Frenchman  who  Has,  perhaps,  most  clearly  analyzed 
the  Jacobin  spirit,  "  What  were  the  successive  chan- 
ges of  sentiment  which  transformed  the  veterans  of 
1792  into  the  men  of  1800?"  He  replied,  "This 
question  can  only  be  answered  in  closely  following 
their  private  correspondence.  "Wholly  devoted  to 
the  nation,  and  finding  '  in  their  vocabulary  no  such 
word  as  fail,'  their  cry  of  '•ca  ird!  reaches  the  Alpine 
glaciers.  When  the  reign  of  terror  comes,  the  most 
intrepid  in  the  ranks  dares  not  look  behind  him 
toward  his  home.  To  his  eyes  the  enemy  is  the 
only  object ;  all  else  is  unknown  or  forgotten.  Then, 
after  passing  the  crisis  and  surmounting  the  danger, 
he  soon  becomes  weary  of  glory  and  feels  a  con- 
tempt for  everything  but  the  army.  There  is  his 
universe ;  outside  of  it  is  nothing.  The  army  is 
his  all  in  all,  and  in  it  he  sees  nothing  but  the 
General-in-chief.  Henceforth  nothing  of  the  citizen 
will  remain.  The  profession  absorbs  the  man ;  the 
military  spirit  absorbs  the  hero."  ^ 

The  American  volunteer  has  never  undergone 
such  transformations.    Four  years  of  uninterrupted 

iThe  "Revolution,"  by  Edgar  Quinet,  Vol.  2,  p.  310  et  seq. 


IN  THE  UNITED  STATES.  ^11 

war  did  not  alter  his  essential  characteristics.  He 
is  a  member  of  the  political  society  of  the  nation, 
and  in  fighting  to  maintain  it  remains  deeply 
attached  to  its  institutions.  Undoubtedly,  a  spirit 
of  obedience  and  discipline  gradually  prevailed  in 
the  ranks,  but  without  in  any  wise  impairing  his  in- 
dividuality or  modifying  his  political  convictions. 
He  makes  war  because  he  belongs  to  the  country, 
yet  he  knows  that  his  is  not  the  profession  of  arms. 
The  camp  does  not  blot  out  the  memory  of  his  boy- 
ish and  youthful  habits  and  associations,  nor  wean 
him  from  them,  and  when  the  war  is  over  he 
resumes  them  without  regretting  the  adventurous 
life  in  which  for  a  time  he  was  engaged. 

It  is  probable  that  the  historian  who  will  some 
day  recount  these  facts  will  be  less  struck  by  the 
formation  of  the  American  armies  than  by  what 
took  place  at  the  close  of  the  civil  war.  It  was 
less  difficult  to  arm  a  million  of  men  than,  at  a 
later  period,  to  discharge  them  and  send  them  to 
their  homes.  He  will  doubtless  dwell  at  length  upon 
the  spirit  which  animated  the  masses,  but  neither 
should  he  overlook  the  stern  control  that  the  Sec- 
retary of  War  exercised  over  men  and  events. 
The  great  patriot  kept  an  incessant  watch  over  any 
untoward  symptoms  which  might  appear  in  the 
Union  armies.  He  taught  both  officers  and  soldiers 
that  their  generals  were  but   agents   of  the  civil 

power.      When   men  of   pre-eminent  ability  and 
12 


178  THE  EXECUTIVE  POWER 

great  vigor  of  character  are  called  in  similar  cir- 
cumstances to  the  head  of  affairs,  they  may,  to  a 
certain  point,  give  a  direction  to  events.  It  rests 
with  them  to  save  republican  liberty  or  to  let  it 
perish. 

The  naval  and  the  military  service  of  the  Union 
are  organized  very  much  upon  the  same  principles. 
Some  vessels  are  in  commission  to  protect  the  mari- 
time and  commercial  interests  of  the  republic  in 
time  of  peace.  They  are  commanded  by  a  select 
corps  of  officers,  whose  number  greatly  exceeds  the 
habitual  requirements  of  the  service;  the  rea- 
son of  this  being  that  at  any  given  moment  the 
commercial  can  be  suddenly  transformed  into  a 
naval  marine.  In  such  an  eventuality  the  United 
States  will  have  at  least  a  portion  of  the  'personnel 
for  the  command  of  these  improvised  fleets. 

As  may  be  seen,  the  American  people,  assuming 
the  defensive,  and  determined  to  avoid  as  far  as  pos- 
sible all  foreign  complications,  consider  themselves 
as  beyond  the  reach  of  invasion,  because  they  are 
conscious  of  their  ability,  at  any  required  moment, 
to  make  an  immense  effort.  They  may  justly  rely 
upon  their  own  vigorous  qualities  and  the  mechan- 
ical and  industrial  resources  of  their  country. 
Doubtless,  the  actual  geographical  position  of  the 
United  States  is  extremely  favorable  to  this  state 
of  things.  Since  the  commencement  of  their  na- 
tional existence   they    have   beheld   the    gradual 


IN  THE  UNITED  STATES.  179 

giving  away  of  the  various  parts  of  the  European  co- 
lonial edifice.  On  the  other  hand  Europe  is  more 
and  more  impressed  with  the  belief  that  her  interests 
upon  the  continent  of  North  America  are  growing 
less,  and  after  several  deplorable  attempts  she  seems 
to  have  almost  wholly  renounced  interference  in 
its  affairs.  The  federal  government  has  naturally 
taken  advantage  of  this  state  of  things ;  its  very 
isolation  has  greatly  increased  its  power  of  resist- 
ance. However,  let  us  for  a  moment  suppose  it 
surrounded  by  neighbors  ;  it  would,  without  doubt, 
be  then  obliged  to  increase  its  precautionary  meas- 
ures; but  were  it  firmly  resolved  to  maintain 
neutrality  and  abstain  from  intermeddling  with  the 
concerns  of  other  nations,  it  would  still  be  possible 
to  keep  on  the  defensive,  and  thus  become  impreg- 
nable. Looking  to  such  contingencies,  the  United 
States  should  require  every  American  to  learn  to 
handle  arms.  Without  even  resorting  to  federal 
intervention,  each  State  could  undertake  this  task 
and  enroll  every  able-bodied  man  in  the  militia,  so 
that  at  a  given  signal  the  entire  nation  would  be 
under  arms.  If  this  arrangement  prevailed,  it 
would  only  remain  for  the  federal  government  to 
keep  in  reserve  a  body  of  general  ofiicers  capable 
of  directing  operations. 

A  similar  measure  might  be  applied  to  the  naval 
forces  of  the  United  States;  it  would  suffice  to 
store   in   their   arsenals  material   in    reserve   and 


iSo  THE  EXECUTIVE  POWER 

to  develop  the  merchaiit  marine  proportionably. 
Upon  any  special  emergency  it  would  be  easy  to 
draw  from  these  elements  all  needful  resources  for 
the  defense  of  the  country.  Doubtless,  these  pre- 
cautions would  involve  considerable  expense ;  the 
productive  forces  of  the  country  would  suffer 
in  a  certain  measure ;  but  what  would  be  such  ex- 
pense compared  to  that  incurred  by  European 
societies  ? 

At  the  same  time  a  methodical  organization  of 
the  militia  would  not  admit  the  growth  of  a  spirit 
of  conquest  or  the  birth  of  a  military  rule.  These 
defensive  precautions  would  not  then  affect  repub- 
lican institutions.  However,  it  must  here  be  ob- 
served that  free  America,  in  spite  of  the  spirit  that 
animates  her,  could  not  endure  more.  Keeping  on 
foot  great  standing  armies  never  fails  to  undermine 
the  most  solid  institutions ;  little  by  little  a  warlike 
spirit  would  make  its  way,  and,  in  proportion  to  its 
increase,  endanger  even  the  republic  itself.  The 
time  would  come  when  it  might  govern  the  execu- 
tive and  compel  the  Legislature  to  come  to  terms. 
These  contingencies  eminently  demand  the  atten- 
tion of  those  countries  that  desire  to  try  the  experi- 
ment of  a  republic.  Military  establishments  were 
created  in  Europe  when  royalty  gained  the  ascend- 
ant, and  they  were  in  perfect  harmony  with  it.  By 
their  agency  most  of  the  modern  nations  have  at- 
tained their  development,  and  now,  if  monarchical 


IN  THE  UNITED  STATES.  i8i 

institutions   are   destined  to  pass  away,  standing 
armies  will  probably  disappear  with  tliem. 

ADMINISTRATION  OF  FINANCES. 

The  history  of  the  financial  policy  of  the  United 
States  cannot  be  given  here.  It  would  require 
long  explanations,  and  withdraw  attention  from  the 
subjects  which  this  volume  was  designed  to  treat. 

The  policy  of  neutrality,  rendering  unnecessary 
a  large  military  establishment,  exercised  a  decisive 
influence  over  financial  measures.  It  is  easy  to 
prove  this  from  official  documents,  all  of  recent 
date.  When  the  war  of  secession  broke  out,  it 
is  nearly  the  precise  truth  to  say  that  the  Northern 
States  had  neither  army  nor  navy.  Their  fiscal 
system,  organized  to  meet  the  very  limited  exigen- 
cies of  the  government,  worked  in  a  very  restricted 
circle.  In  1861  every  thing  had  to  be  at  once 
created.  But  the  majority  of  the  American  people 
were  determined  to  save  the  Union,  and,  having  once 
taken  this  resolution,  would  not  be  deterred  by  any 
sacrifice.  So  the  levies  of  men  succeeded  each  other 
for  four  years  with  unexampled  rapidity ;  large  and 
increasing  demands  for  money  were  constantly  made. 
The  nation  responded  to  both.  It  is  proper  to  add 
that  on  repeated  occasions  in  the  darkest  days  of 
the  war,  states  and  cities  addressed  remonstrances  to 
the  federal  government,  complaining  of  its  extreme 
caution  and  its  failure  to  resort  to  more  aggressive 


i82  THE  EXECUTIVE  POWER 

measures,  and  almost  always  closing  by  renewed 
offers  of  assistance. 

These  observations  serve  to  facilitate  a  compre- 
hension of  the  financial  operations  of  this  period. 
A  table  of  the  expenditures,  including  the  interest 
paid  on  the  debt,^  is  herewith  subjoined  : 

1861 $    66,571,328 

1862 474,744,777 

1863 714,709,997 

1864 865,234,087 

1865 1,290,308,982 

1866 520,750,939 

1870 309,553,560 

These  figures  would  be  incomplete  with  out  adding 

1.  The  federal  debt  prior  to  the  war,  $76,455,299. 

2.  The  sum  total  of  debt  contracted  by  the  fed- 
eral government,  say  $2,412,547,181. 

3.  Pensions  paid  and  still  payable  to  the  wounded 
and  to  the  widows  and  children  of  deceased  soldiers, 
say  $30,000,000  per  annum. 

4.  Finally,  the  extraordinary  expenditures  of 
states,  counties,  townships  and  towns  on  account 
of  the  war,  amounted,  by  the  most,  reliable  esti- 
mates, to  $^23,000,000.  This  last  item,  not  being 
charged  to  the  federal  government,  is  merely  al- 
luded to.  Thus  the  United  States  had,  properly 
speaking,  no  financial  precedents  to  guide  them  in 
providing  for  these  enormous  outlays.  Before  the 
war  they  enjoyed,  in  this  respect,  an  exceptional 

iSee  the  learned  reports  of  Mr.  David  A.  Wells,  Special  Com- 
missioner of  the  llevenue,  from  1866  to  1870. 


IN  THE  UNITED  STATES.  183 

position.  They  were  but  slightly  in  debt,  and  the 
sums  they  needed  were  collected  without  scarcely 
exciting  public  attention.  It  was  natural  that 
questions  of  finance  should  be  then  regarded  with 
but  little  interest.  In  1861  the  country  entered 
upon  an  entirely  new  state  of  things,  and  resolved 
without  hesitation  to  be  equal  to  it;  but  in  erecting 
an  immense  edifice,  required  for  immediate  use, 
more  attention  was  given  to  its  rapid  construction 
than  to  the  adjustment  of  its  proportions.  The 
government  acte^  with  promptness  and  vigor,  and 
the  taxes  levied  from  time  to  time  to  keep  pace 
with  its  constantly  increasing  necessities  were  cheer- 
fully paid.  The  working  of  the  system  which  was 
adopted  subjected  to  severe  trials  the  patriotism 
and  the  power  of  a  people  who  never  sunk  under 
the  weight  of  these  burdens. 

The  two  principal  sources  of  revenue  during  the 
war  were,  1,  the  internal  revenue,  composed  of  taxes 
intended  to  reach,  under  every  possible  form,  all  ar- 
ticles of  production  and  consumption  ;  2,  the  duties 
on  merchandise  imported  into  the  United  States.  A 
table  of  the  prodigious  results  obtained  is  here  given : 

1.  Internal  revenue: 

1863,  year  of  its  creation $  37,640,787 

1864 109,741,134 

1865 209,464,215 

1867.. 309,226,813 

1867  1 266,027,537 

1  After  a  reduction  of  over  $50,000,000,  made  In  consequence  of  a 
legislative  measure  of  July  13, 1866. 


i84  THE  EXECUTIVE  POWER 

Finally,  in  1870,  after  new  reductions  exceeding 
$80,000,000,  the  internal  revenue  still  produced 
$185,128,859.1 

2.  The  principles  relative  to  the  existing  customs 
duties  were  established  by  the  act  of  March  2, 1861. 
Since  its  passage,  until  that  of  July  14,  1870,  the 
tariff  was  a  dozen  times  amended.  From  1865  to 
1868  the  average  of  such  duties  was  raised  to  48 
per  cent.  A  table  of  revenue  derived  therefrom  is 
subjoined: 

1861 • $39,582,125 

1862 49,056,397 

1863 69,059,643 

1864 102,316,152 

1865 84,928,260 

1866 179,046,651 

1867 176,417,810 

1870 194,538,374 

It  is  to  be  remarked  that  these  duties  have  not 
been  reduced  in  proper  proportion  to  the  internal 
revenue  tax.  The  manufacturing  interest  per- 
suaded the  country  that  duties  on  imported  mer- 
chandise were  not  so  onerous  on  the  masses  as  other 
taxes,  so  that,  in  place  of  ceasing  with  the  war,  the 
ascending  scale  continued  up  to  1870.  If  we  ask 
why  this  financial  policy  succeeded,  we  must  in  the 
first  place  attribute  it  to  the  patriotism  of  Ameri- 
cans who  never  despaired  of  their  country.  In  the 
second  place,  the  natural  riches  of  almost  an  entire 

1  111  1872  new  reductions  took  place. 


IN  THE  UNITED  STATES.  185 

continent  inspired  the  confidence  of  the  people,  and 
enabled  them  to  meet  the  almost  crushing  demands 
made  upon  them.  In  the  third  place,  there  are  no 
unoccupied  classes  in  the  United  States.  Labor  is 
almost  always  considered  honorable,  and  the  rich 
claim  no  repose.  So  that  all  the  living  forces  of 
society  are  perpetually  active.  And,  in  conclusion, 
the  American  people  knew  how  to  put  forth  great 
efforts,  and  after  obtaining  success,  to  make  a  sud- 
den halt.  The  victory  was  scarcely  won  when  the 
executive  disbanded  the  armies  and  replaced  the 
fleets  of  the  Union  on  a  peace  footing ;  so  that  ex- 
penses immediately  diminished,  and  labor,  returning 
to  its  former  channels  of  agriculture,  industry  and 
commerce,  swelled  the  producing  strength  of  the 
country.  This  point  cannot  be  too  earnestly  in- 
sisted upon.  The  earliest  practicable  disbandment 
of  the  troops  enabled  the  American  republic  to 
avoid  the  grave  financial  embarrassments  which 
would  have  inevitably  occurred  if  it  had  been  con- 
strained to  keep  a  large  armed  force  in  time  of 
peace.  In  proof  of  this  assertion,  the  following  table, 
showing  the  annual  cost  of  the  army  and  navy  from 
1861  to  1871,  is  appended: 

ARMY.  NAVY. 

1861 $23,001,530  $12,387,156 

1862..... 394,368,407  42,674,569 

1863 599,298,600  63,211,105 

•     1864 690,791,842  85,738,292 

1865  1 1,031,323,360  122,567,776 

1  It  was  from  the  month  of  June,  1865,  that  the  disbanding  com- 
menced. 


Ig6  THE  EXECUTIVE  POWER 

1866 $284,479,701  $43,324,118 

1867 95,224,415  31,034,011 

1870 57,655,674  21,780,229 

1871  1 28,488,194  20,045,417 

These  figures  scarcely  require  comment ;  it  is 
evident  that,  if  the  army  and  navy  had  not  been 
speedily  restored  to  their  minimum  force,  not  only 
would  it  have  been  impossible  to  reduce  the  debt, 
but  it  must  have  been  necessarily  increased. 

Nevertheless,  it  cannot  be  said  that  the  United 
States  could  not  then  have  followed  an  entirely 
different  policy.  At  the  close  of  the  war  the  French 
army  still  occupied  Mexico,  and  many  Americans 
were  of  opinion  that  the  United  States  ought  to 
expel  it  from  the  country.  The  attitude  of  Eng- 
land during  the  civil  war  had  also  given  birth  to 
the  most  bitter  feelings,  and  grave  complications 
seemed  almost  inevitable.  It  was  the  glory  of  the 
then  Secretary  of  State  to  resist  all  these  influ- 
ences. Mr.  Seward  retained  for  diplomatic  discus- 
sion those  questions  that  oth-er  eminent  public 
men  desired  to  settle  by  the  sword.  He  avoided 
ever  J  cause  for  war,  and  preferred  to  its  hazards 
and  sufferings  a  policy  of  peace  and  reparation. 

Thus  the  system  of  neutrality  has  given  to  the 
whole  American  administration  its  peculiar  char- 
acter. To  the  Presidents  of  the  United  States  is 
in  great  part  due  the  credit  of  .having  advanced  and 
maintained  these  ideas  of  government.     They  have 

1  Estimate  of  the  Secretary  of  the  Treasury. 


IN  THE  UNITED  STATES.  ^^l 

created  nearly  all  tlie  system ;  they  have  conducted 
the  foreign  relations  of  the  country ;  in  moments 
of  crisis  they  have  organized  either  resistance  or 
attack.  They  have  generally  evinced  more  discre- 
tion than  Congress,  and  almost  always  proved 
themselves  to  be  worthy  of  the  confidence  of  the 
people. 

DEPARTMENT   OF   JUSTICE. 

By  the  Constitution  the  President  is  required  to 
take  care  that  the  laws  shall  be  faithfully  executed. 

In  the  discharge  of  these  arduous  duties,  he  is 
specially  aided  by  a  member  of  the  Cabinet,  who 
acts  as  his  legal  adviser,  and  whose  relations  to  the 
executive  branch  of  the  government  are  of  a  pecu- 
liar character. 

The  Attorney-general's  office,  created  September 
24th,  1787,  became,  by  virtue  of  an  act  of  June 
22d,  1870,  the  department  of  justice.  The  act 
transferred  to  that  department,  and  placed  under 
the  supervision  of  the  Attorney-general,  who  is  its 
chief,  all  the  law-of&cers  who  had  been  previously 
attached  to  the  other  departments.  He.  can  refer 
all  questions  of  law  submitted  to  him,  except  such 
as  involve  a  construction  of  the  Constitution,  to  any 
of  his  subordinates,  and  require  a  written  opinion 
thereon,  which,  if  approved  by  him,  has  the  same 
force  and  effect  as  belong  to  his  own.  One  of  *he 
most  distinguished  juris-consults  who  have  filled 


i88  THE  EXECUTIVE  POWER 

the  place  thus  defines  its  duties:  "We  have  seen," 
says  Mr.  Caleb  Gushing,  "  that  the  act  establishing 
the  office  of  Attorney- general  expressly  imposed  on 
him  two  classes  of  duty ;  first,  to  prosecute  all  suits 
in  the  Supreme  Court,  in  which  the  United  States  is 
concerned ;  and  secondly,  to  give  his  advice  and 
opinion  in  questions  of  law  to  the  President  and  to 
the  heads  bf  departments. 

In  the  discharge  of  the  second-class  of  the  above- 
mentioned  duties,  the  action  of  the  Attorney-general 
is  quasi -judicial.  His  opinions  officially  expound 
the  law  in  a  multitude  of  cases,  where  his  decision 
is,  in  practice,  final  and  conclusive. 

Although  the  act  requiring  this  duty  of  the 
Attorney-general  does  not  expressly  declare  what 
effect  shall  be  given  to  his  opinion,  yet  the  general 
practice  of  the  government  has  been  to  follow  it ; 
partly  for  the  reason  that  an  officer  going  against  it 
would  be  subject  to  the  imputation  of  disregarding 
the  law  as  officially  pronounced,  and  partly  from 
the  great  advantage,  and  almost  necessity,  of  acting 
according  to  uniform  rules  of  law  in  the  manage- 
ment of  public  business."  ^ 

However,  the  head  of  the  department  of  justice 
has  not  the  powers  of  a  quasi-appellate  tribunal. 
An  appeal  does  not  lie  to  him  from  another  depart- 
ment by  a  party  assuming  to  be  aggrieved  by  its 
action   and   seeking    to    have   it   reviewed.      He 

1  Opinions  of  Attorneys-general,  pp.  333-4,  Vol.  VI. 


IN  THE  UNITED  STATES.  189 

advises  a  department  on  the  request  of  its  chief, 
and  only  in  cases  actually  depending,  in  which  the 
United  States  has  an  interest.  It  is  impossible 
for  Congress  to  foresee  and  specifically  provide  for 
all  the  possible  future  contingencies  of  executive 
business,  either  in  respect  to  the  business  itself  or 
the  manner  of  conducting  it.  In  the  nature  of 
things,  a  necessary  discretion  as  to  all  such  business 
must  exist  somewhere,  and  that  discretion,  when 
the  law  does  not  speak,  resides  with  the  President. 
It  stops  when  the  law  defines  what  is  to  be  done  by 
a  given  head  of  department,  and  how  he  is  to  do  it ; 
but  if  the  law  requires  an  executive  act  to  be  per- 
formed without  saying  how  or  by  whom,  it  must 
be  for  the  President  to  supply  the  defect  in  virtue 
of  his  powers  under  the  Constitution.  Sometimes 
the  laws  are  obscure  or  abound  in  conflicting  provi- 
sions. In  all  such  cases  the  President  may  require 
the  advice  of  the  Attorney-general,  and  it  will,  in 
general,  be  considered  as  binding.  So  far  as  exec- 
utive action  is  concerned  it  is  final  and  beyond  the 
revisory  power  of  the  courts.^ 

The  latter  have  uniformly  and  firmly  refused 
to  interfere,  either  by  mandamus  or  injunction, 
with  an  executive  officer  in  the  discharge  of  duties 
confided  to  him  by  law,  and  involving  the  exercise 
of  judgment  and  discretion.  It  is  proper  to  add 
that  they  will  in  some  cases  pass  upon  his  acts, 

1  Opinions  of  the  Attorneys-general,  Vol.  VI.  p.  326,  passim. 


I90  THE  EXECUTIVE  POWER 

when  foanded  upon  a  misconstruction  of  the  law, 
after  the  title  has  passed  from  the  government  and 
the  question  beconie  one  of  private  right  between 
adversary  parties. 

\We  must  here  notice  that  the  administration 
may  be  viewed  in  two  ways :  the  executive  agent 
may  allow  himself  to  be  controlled  by  considera- 
tions exclusively  political ;  he  will  then  administer 
as  so  many  have  done  on  the  European  continent,  J 
He  may  doubtless  have  the  best  intentions,  hold  the 
public  interest  in  view,  even  contribute  to  the 
well  being  of  those  under  his  jurisdiction ;  and 
yet,  although  personally  devoted  to  political  liberty, 
2liis  modes  of  thought  will  be  fatal  to  the  cause  he 
desires  to  serve.  In  free  countries,  on  the  contrary, 
the  functionary  should  give  an  entirely  different 
bent  to  his  ideas.  He  would  thus  gradually  cease  to 
be  pre- occupied  by  merely  political,  and  become 
more  and  more  influenced  by  legal  considerations. 
Then  he  would  conclude  that  individuals  ought  to 
assert  their  own  claims  and  rights,  and  as  cases  arise 
he  would  confine  himself  to  the  duty  of  interpret- 
ing and  applying  the  law.  Above  all,  in  peaceful 
times  he  would  almost  cease  to  be  an  administrator 
and  become  in  some  sense  a  judge.^ 

In  the  United  States,  in  the  ordinary  practice, 
those   who  possess  authority  act  in  general  very 

1  These  remarks  neither  apply  to  the  intervention  of  federal 
agents  in  the  affairs  of  the  political  party  to  which  they  belong, 
nor  to  their  action  in  electoral  campaigns. 


IN  THE  UNITED  STATES.  191 

little.  Their  principal  function  consists  in  deciding 
what  the  law  authorizes  and  what  it  forbids.  A 
European  who  should  enter  the  office  of  the  chief  of 
an  executive  department  would  doubtless  be  aston- 
ished to  see  him  less  occupied  in  impressing  his 
views  of  public  questions  on  the  minds  of  the  sub- 
ordinates in  that  branch  of  the  public  service  over 
which  he  presides,  than  in  deciding  matters  of  law  ; 
and  yet  this  is  his  principal  duty.  If  he  declines 
to  abide  by  his  own  judgment,  or  wishes  to  avoid 
responsibility,  he  submits  to  the  Attorney-general 
the  difficulties  he  hesitates  to  solve.  In  this  way 
he  contracts  vastly  better  habits.  He  ceases  to  be 
restless  and  turbulent,  and  is  no  longer  anxious  to 
meet  all  contingencies.  He  does  not  look  upon 
himself  as  called  upon  to  make  a  people  happy. 
The  greater  part  of  the  time  he  remains  inactive, 
until  a  question  is  presented,  and  then  his  true 
functions  commence.  A  kind  of  executive  magis- 
trate.^ he  weighs  arguments  and  decides.  "We 
cannot  dwell  too  pointedly  upon  this  difference 
between  the  European  and  the  American  function- 
ary ;  it  may  be  found  in  every  institution.  The 
President  of  a  French,  Italian  or  German  assembly, 
for  instance,  considers  himself  in  many  respects  as 
a  sort  of  administrator.  He  conducts  the  delibera- 
tions, interferes  incessantly,  and  in  short  is,  or 
thinks  he  is,  a  political  power.  The  presiding 
officer  of  an  American  legislative  body  allows  each 


192  THE  EXECUTIVE  POWER 

one  to  exercise  his  own  initiative.  When  there  is 
a  conflict  of  opinion  on  any  question  of  order,  one 
of  the  members  asks  him  to  pass  upon  the  contro- 
verted point.  He  then  examines  the  precedents 
and  gives  his  decision.  Any  dissenting  member 
may  appeal  from  it  to  the  House,  and  its  vote  finally 
settles  thB  question.  Thus  has  been  formed  that 
great  parliamentary  law  which  for  nearly  a  century 
has  guaranteed  the  liberty  of  American  legislatures 
and  the  rights  of  those  who  belong  to  them. 

These  observations  will  aid  us  in  understanding 
in  what  manner  the  President  of  the  United  States 
performs  his  daily  duties.  In  administrative  ques- 
tions he  leaves  the  citizen  almost  entire  liberty ; 
allows  him  the  initiative ;  he  remains,  as  far  as 
possible,  in  a  passive  position ;  he  is,  according  to 
a  common  expression,  the  chief  magistrate  of  the 
country,  a  title  which  particularly  well  describes 
the  head  of  a  republican  government. 

As  may  be  understood  from  the  explanations 
already  given,  the  President  wields  an  immense 
power.  As  it  is  incumbent  on  him  to  propose 
general  measures  to  Congress,  to  furnish  it  with  all 
the  information  it  requires,  and  to  aid  it  in  elabo- 
rating the  laws ;  .so  he,  in  a  great  measure,  gives 
direction  to  federal  legislation.  At  the  same  time 
the  Constitution  enjoins  upon  him  the  execution 
of  the  laws.  Hence,  the  necessity  of  his  exercising, 
in  the  last  resort,  the  right  of  interpretation. 


IN  THE  UNITED  STATES.  193 

In  the  history  of  the  United  States,  the  action 
of  the  executive  is  everywhere  felt.  As  stated  in  a 
preceding  page,  it  has,  by  skillfully  maintaining 
their  foreign  policy,  essentially  aided  in  securing  an 
almost  complete  disarmament.  It  is  also  due  in 
great  part  to  its  firmness  and  perseverance  that  the 
financial  system  of  the  country  has  been  upheld. 
At  the  same  time,  numerous  precedents  are  re- 
corded in  each  branch  of  the  executive  administra- 
tion. We  cannot  here  speak  of  the  personal  char- 
acter of  the  men  who  have  in  succession  occupied 
the  presidential  chair.  History  has  already  given 
an  assured  immortality  to  some  of  them.  Others 
will  be  placed  in  the  category  of  ordinary  men. 
The  influence  of  the  latter  has,  however,  been  rarely 
disastrous,  as  most  of  them  were  surrounded  by 
distinguished  advisers,  who  concealed  from  public 
view  and  supplied  the  personal  insufficiency  of 
their  chiefs.  It  is  well  also  to  observe  that  the  ex- 
ecutive administration  has  its  traditions,  for  the 
most  part  so  firmly  established  that  a  President 
can  rarely  depart  from  them.  A  demagogue,  en- 
tering the  White  House  after  having  pledged  him- 
self to  a  course  contrary  to  that  of  his  predecessors, 
(and  this  is  scarcely  probable),  would  soon  be  con- 
strained to  conform  to  pre-existing  usages.  It  is 
doubtful  if  the  will  of  any  man,  however  obsti- 
nate, would  not  bend  under  the"  weight  of  long- 
settled  precedents. 
13 


194  THE  EXECUTIVE  POWER 

At  the  same  time  a  sentiment  of  responsibility, 
inseparable  from  power,  has  bad  tbe  most  propitious 
influence  upon  tbe  Presidents.  They  have  in  gen- 
eral followed  the  path  which  duty  and  honor  pre- 
scribe and  shunned  the  pursuit  of  a  vain  popularity. 
It  is  worthy  of  record  that  public  opinion  has 
appreciated  and  honored  their  resistance  to  the 
passions  and  excitements  of  the  hour,  and  recog- 
nized that  they  were  guided  in  so  doing  by  a  love 
for  their  country  and  a  desire  to  promote  her  per- 
manent interests. 


CHAPTEK  YIII. 

THE   SENATE   AS  AN  EXECUTIVE    COUNCIL. 

WHEN  the  framers  of  the  Constitution  rejected 
the  plan  of  a  collective  responsibility  of 
the  ministry,  they  could  not  have  provided 
for  the  intervention  of  Congress  in  certain  execu- 
tive acts  without  bringing  on  a  conflict  of  powers. 

On  the  other  hand,  had  the  President  been  in- 
vested with  the  exclusive  right  to  conclude  inter- 
national engagements,  the  foreign  relations  of  the 
Union  would  have  escaped  all  manner  of  control ; 
had  the  appointing  power  been  conferred  upon  him 
alone,  he  would  have  become  the  absolute  head  of 
the  civil  and  military  administration. 

The  convention  avoided  these  difiiculties  by 
adopting  a  new  method ;  the  Senate  was  clothed 
with  the  right  of  assisting  the  President  as  an 
executive  council.  The  Constitution  says,  that  he 
"shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided 
two-thirds  of  the  Senators  present  concur,"^  and 
that   the  consent    of  that  body  is  necessary  to 

1  Constitution,  Article  II.,  Section  2. 
(195) 


196  THE  EXECUTIVE  POWER   . 

the  appointment  of  functionaries  nominated  by 
him.  These  constitutional  provisions  confer  on 
the  Senate  prerogatives,  which  constitute  it  a  coun- 
cil of  the  government. 

We  must  carefully  notice  that  the  Senate,  when 
.  acting  in  this  special  capacity,  ceases  to  be  a  part 
of  the  legislative   power.      When   engaged  upon 
questions  of  this  nature  it  is,  according  to  a  tech- 
nical expression,  transacting  "  executive  business." 

It  would  be  difficult  to  contrive  a  more  satisfac- 
tory combination.  The  Senate  is  few  in  number 
and  renewed  by  thirds.  It  thus  constitutes  a  per- 
manent body,  and  can  preserve  its  traditions; 
whilst  on  the  other  hand,  thanks  to  the  intimate 
relations  established  with  the  executive,  it  partici- 
pates in  matters  of  the  highest  moment.  Con- 
formably to  constant  practice,  whenever  the  Senate 
is  engaged  in  the  consideration  of  "executive" 
questions,  the  sittings  are  secret.  This  rule  is  as 
applicable  to-day  as  it  was  eighty  years  ago,  when- 
ever nominations  are  disposed  of  The  debates,  in  * 
which  the  antecedents  of  the  nominee  are  often  re- 
viewed with  great  freedom  and  warmth,  cannot 
take  place  in  public.  But  for  some  years  past  the 
inquiry  has  boen  made,  whether  the  same  reason 
applies  to  the  discussion  of  treaty  stipulations. 
How,  it  is  said,  can  such  a  usage  be  maintained 
when  every  legislature  in  Europe  deliberates  them 
in  open  session.    For  instance,  a  convention  is  con- 


IN  THE  UNITED  STATES.  197 

eluded  between  the  United  States  and  England.  It 
is  considered  publicly  at  London,  but  with  closed 
doors  at  Washington.  Its  scope  and  bearing  can 
be  ascertained  from  the  English  parliamentary  de- 
bates, while  those  in  the  Senate  are  a  sealed  book. 

But  hitherto  the  Senate  has  very  justly  refused 
to  modify  this  regulation.  Those  who  desire  its 
continuance  say  that  in  a  private  session  much 
greater  latitude  in  the  expression  of  opinion  upon 
the  conduct  of  diplomatic  affairs  and  the  action  of 
the  executive  can  be  indulged,  and  a  more  searching 
examination  made  of  the  questions  at  issue. 

As  it  is  important  to  understand  fully  the 
authority  of  the  Senate  in  acting  upon  such  mat- 
ters, we  shall  examine  in  what  manner  it  inter- 
venes, first,  in  the  ratification  of  treaties,  and  then 
in  the  appointment  of  officers  nominated  by  the 
President. 

An  international  engagement  is  hot  binding  on 
the  United  States,  except  it  be  ratified  by  the  Sen- 
ate. This  rule  is  peremptory  and  without  exception. 
The  President  is  always  subject  to  the  action  of  the 
council  that  the  Constitution  has  associated  with 
him.  He  cannot  therefore  make  secretly  such  en- 
gagements upon  which  it  has  had  no  information. 
Thus  his  functions  are  limited  to  negotiating,  pre- 
paring and  drafting  the  convention.  He  then  com- 
municates it  to  that  body,  which  has  an  absolute 
power  to  approve,  reject  or  amend  it. 


,98  THE  EXECUTIVE  POWER 

Foreign  powers  have,  at  times,  learned  to  their 
cost  the  full  force  pf  these  constitutional  provisions. ' 
At  times  it  has  happened  that  the  President  has 
allowed  himself  to  go  too  far  by  consenting,  in  the 
hope  of  influencing  the  Senate,  that  the  execution 
of  certain  treaties  should  be  commenced  before 
that  body  had  considered  them.  On  these  occa- 
sions, the  Senate  has  often  vigorously  maintained 
its  rights,  and  at  times  even  disregarded  the  stipu- 
lations the  President  had  made.  This  happened, 
for  instance,  when  the  United  States  purchased  the 
islands  belonging  to  Denmark  in  the  West  Indies. 
By  the  terms  of  the  project  of  the  treaty,  the  peo- 
ple of  St.  Thomas  and  St.  John  were  to  be  consulted 
before  a  transfer  of  sovereignty  could  take  place. 
The  Danish  government  fulfilled  its  engagements 
faithfully,  and  the  result  of  the  vote  in  the  islands 
was  favorable  to  their  annexation  to  the  United 
States.  The  king  absolved  his  subjects  from 
their  oath  of  allegiance.  So  that,  before  the  Senate 
had  considered  the  question,  Denmark  had  done 
certain  irrevocable  acts ;  but,  notwithstanding,  that 
body  refused  to  regard  itself  as  concluded  by  them. 
Vainly  did  Denmark  attempt  to  maintain  that, 
according  to  international  law,  the  Senate  was 
bound,  and  the  honor  of  the  United  States  at  stake. 
All  was  useless;  the  Senate  decided  that  it  pos- 
sessed, under  the  Constitution,  rights  that  no  person 
could  compromise.  ^ 

1  other  similar  examples  might  be  cited. 


IN  THE  UNITED  STATES. 


199 


On  another  recent  occasion  the  Senate  directly 
opposed  the  execative.  Soon  after  his  installation, 
General  Grant  signed  a  treaty  stipulating  for  the 
annexation  of  the  Dominican  Kepublic,  and  by  a 
separate  protocol  entered  into  personal  obligations 
to  exert  all  his  influence  to  obtain  its  ratification. 
He  kept  his  word ;  he  neglected  no  opportunity  of 
presenting  to  the  Senate  the  advantages  of  this  addi- 
tion to  the  territory  of  the  United  States ;  but  all  his 
influence  was  unable  to  overcome  its  opposition. 

If  the  United  States  were  not  determined  to 
maintain  their  policy  of  neutrality  and  abstention, 
the  province  of  the  Senate  in  the  ratification  of 
treaties  would  paralyze  all  the  foreign  policy  of  the 
government. 

A  power  enters  into  negotiations  with  the  execu- 
tive, who  is  represented  by  the  Secretary  of  State ; 
when  they  are  closed,  a  treaty  is  prepared  and 
communicated  to  the  Senate.  That  body  exam- 
ines, discusses  and  rejects  it.  In  making  known 
this  result  to  the  power  with  whom  he  has  been  in 
treaty,  the  Secretary  of  State  is  obliged  to  allege 
that  he  has  exhausted  all  appropriate  means  in  his 
power  to  obtain  a  ratification,  but  that  the  Senate 
differed  with  him  in  opinion.  He  expresses  regret, 
and  the  matter  stops  there ;  he  can  have  no  direct 
control  over  the  Senate.  Its  decision  does  not  af- 
fect his  constitutional  responsibility,  or  that  of  the 
President. 


200  THE  EXECUTIVE  POWER 

In  some  countries  subject  to  parliamentary  con- 
trol, matters  take  a  different  course.  It  is  the  duty 
of  the  minister  who  has  signed  a  treaty  to  submit 
it  to  the  Chambers,  and  ask  for  its  ratification.  If 
the  majority  withhold  their  sanction,  he  can  dis- 
solve the  assembly  and  appeal  to  the  electoral  body, 
and  if  it  sustains  the  majority  against  him,  he 
tenders  his  resignation.  Then  the  power  with 
whom  he  has  been  in  treaty  will  be  satisfied  that  he 
has  neglected  no  means  at  his  command  in  order  to 
meet  his  engagements.  In  the  United  States  noth- 
ing of  the  sort  exists.  A  treaty  concluded  with 
the  executive  does  not  oblige  the  Senate,  and  he 
has  no  constitutional  means  of  acting  on  that  body. 
If  it  dissents  from  his  opinion  and  refuses  the  re- 
quested ratification,  he  can  neither  dissolve  it  nor 
appeal  to  the  people. 

Nor  is  this  all ;  according  to  the  constant  usage 
of  the  United  States  other  nations  can  have  no 
relations  whatever  with  its  deliberative  assemblies. 
American  customs  would  not  suffer  the  accredited 
minister  of  a  foreign  power  to  treat  directly  with 
the  Senate  upon  matters  of  the  greatest  interest. 
What  happens  in  consequence  ?  Any  government 
negotiating  with  the  United  States  is  placed  to 
some  extent  in  a  position  of  inferiority.  When  its 
representative  signs  an  engagement,  an  obligation 
to  have  it  ratified  in  due  form  and  by  the  proper 
authority  is  thereby  assumed.   If  a  responsible  min- 


IN  THE  UNITED  STATES.  201 

ister  makes  a  treaty,  lie  is  bound,  if  need  be,  to 
dissolve  the  parliament  of  bis  country,  or  send  in 
his  resignation,  if  he  cannot  perform  that  obliga- 
tion. On  the  contrary,  as  soon  as  the  President 
sends  the  convention  to  the-  Senate  his  power  is  ex- 
hausted, and  if  that  body  does  not  ratify  it  his  re- 
sponsibility is  completely  released. 

In  order  to  avoid  the  serious  perplexity  growing 
out  of  such  a  state  of  things,  several  Presidents,  be- 
fore concluding  negotiations,  have  preferred  to 
communicate  certain  projects  of  treaties  to  the  Sen- 
ate, for  the  purpose  of  consultation,  and  to  ascertain 
if  it  would  eventually  consent  to  their  ratification. 
The  executive  has  in  this  way  always  been  able  to 
regulate  its  action  and  escape  embarrassment  and 
responsibility. 

This  was  particularly  the  case  in  a  recent  circum- 
stance. When  the  question  relating  to  the  settle- 
ment of  the  Alabama  claims  became  involved  with 
that  of  indirect  damages,  they  proposed  at  London 
to  negotiate  a  supplementary  treaty,  disposing  of 
this  subject.  General  Grant,  having  reasons  to 
doubt  if  the  Senate  would  authorize  him  to  proceed 
further,  communicated  the  project  previously  to 
that  body.  They  modified  it  in  some  particulars, 
and  informed  him  that  negotiations  might  proceed 
on  that  basis.  After  past  experience,  at  times  so 
painful  to  the  powers  that  have  been  in  treaty  with 
the  United  States,  it  is  probable  that  the  method 


202  THE  EXECUTIVE  POWER 

pursued  in  regard  to  this  supplementary  treaty 
will  be  more  and  more  adopted  in  the  future.  It 
has  some  objectionable  features ;  it  is  especially 
almost  impossible  to  guard  secresy;  but  on  the 
other  hand  it  provides  against  the  ultimate  disagree- 
ment of  the  Senate,  and  enables  the  executive  to 
act  with  a  full  knowledge  of  all  the  facts  bearing  on 
the  subject-matter. 

The  negotiators  may  also  take  a  middle  course 
and  attempt  to  ascertain  in  advance,  and  confiden- 
tially, the  views  and  intentions  of  the  principal 
Senators,  so  that  a  satisfactory  form  may  be  given 
to  pending  negotiations ;  but  this  plan  requires  the 
utmost  tact  to  ensure  success,  and  is,  moreover,  liable 
to  be  frustrated  by  those  sudden  changes  of  opinion 
that  occur  so  unexpectedly  in  all  .deliberative 
bodies. 

However  that  may  be,  when  the  project  of  a 
treaty,  or  a  treaty  itself,  is  once  decided  on  or  con- 
cluded, the  President  transmits  it  to  the  Senate, 
accompanied  by  an  explanatory  message,  and  very 
often  by  papers  sustaining  it,  as  for  instance  the 
diplomatic  correspondence  that  took  place  during 
the  negotiations.  When  these  documents  are  sent 
to  that  body  it  goes  into  secret  session,  and  on 
motion  of  the  chairman  of  the  committee  on  foreign 
relations  the  whole  subject  is  referred  to  that  com- 
mittee. As  is  known,  the  Senate  committees  are 
organized  permanently.     Every  two  years,  when 


IN  THE  UNITED  STATES.  203 

the  partial  renewal  of  the  assembly  takes  place, 
they  are  remodeled,  but  their  formation  is  never 
entirely  changed.  A  tradition  is  thus  preserved  in 
each  of  them.  This  is  particularly  the  case  with, 
the  committee  on  foreign  relations ;  it  has  generally 
consisted  of  distinguished  Senators,  and  most  of  the 
time  has  had  for  chairman  a  statesman  of  com- 
manding ability.  It  suffices  to  mention  the  names 
of  Mr.  John  Forsyth  and  Mr.  Charles  Sumner  as 
proof  of  the  jealous  care  with  which  the  Senate 
has  at  certain  periods  chosen  those  to  whom  such 
delicate  and  important  functions  are  confided.  Under 
their  auspices  and  by  their  labors — and  in  these  past 
years  this  remark  applies  with  special  emphasis  to 
Mr.  Sumner — this  committee  has  performed  a  most 
conspicuous  part  in  the  history  of  the  foreign  affairs 
of  the  Union.  In  the  crises  through  which  the 
United  States  has  passed,  it  has  greatly  contri- 
buted to  maintain  the  foreign  policy  founded  by 
Washington  ;  and  if  at  times  the  executive  seemed 
inclined  to  go  too  far,  it  has  restrained  and  arrested 
his  action,  so  that  by  the  side  of  the  Department  of 
State  is  a  superintending  power  which  has  almost 
always  saved  the  country  from  the  fatal  effects  which 
might  have  resulted  from  yielding  to  temporary 
excitement. 

As  soon  as  the  project  of  a  treaty  is  referred  to 
the  committee  on  foreign  relations,  the  text  and 
accompanying  papers  are  printed,  and  the  investi- 


204  THE  EXECUTIVE' POWER 

gation  of  the  questions  is  proceeded  with.  If  they 
are  of  importance,  the  committee  Very  often-  does 
not  confine  itself  to  the  communications  received, 
but  calls  for  further  information,  or  even  requests 
the  personal  attendance  of  the  Secretary  of  St^ite 
for  consultation  and  a  full  interchange  of  views, 
and  then  the  subject  in  all  its  aspects  and  bearings 
is  carefully  examined.  When  the  committee  is 
fully  informed  it  adopts  one  of  the  following  plans : 
it  makes  a  report  in  favor  of  the  treaty,  or  pro 
poses  amendments,  or  decides  against  the  ratifi- 
cation ;  or,  without  expressing  any  opinion,  submits 
the  question  for  the  consideration  and  action  of  the 
Senate;  or  still  again,  it  allows  the  time  in  which 
the  ratifications  are  to  be  exchanged,  to  expire 
without  making  a  report.  The  Senate  can  of 
course  always  insist  upon  a  report,  but  in  most 
cases  great  latitude  is  allowed  the  committee. 

If  the  committee  reports  favorably,  it  generally 
looks  to  the  chairman  to  sustain  its  opinion.  He 
is  then,  in  an  accommodated  sense,  a  representative 
of  the  executive  before  the  Senate,  and  an  exponent 
of  the  policy  of  the  administration.  But  if  the 
majority  of  the  committee  oppose  the  ratification, 
he  is  simply  their  organ. 

As  a  general  thing,  party  spirit  does  not  enter 
largely  into  foreign  questions;  they  are  usually 
considered  and  decided  on  their  own  merits.  So 
the  relative  strength  of  parties  in  the  Senate  does 


IN  THE  UNITED  STATES.  205 

not  determine  the  fate  of  a  diplomatic  convention. 
Thus  a  ratification  becomes  possible  ;  were  it  other- 
wise, it  could  not  be  expected  in  the  majority  of 
cases  that  two- thirds  of  the  Senators  present  would 
vc  be  in  favor  of  a  treaty.  If  the  Senate  approve 
the  ratification  of  the  instrument  submitted  to  it, 
it  gives  its  "advice  and  consent  to  the  President." 
He  is  then  authorized  to  set  his  hand  and  cause 
the  seal  of  the  United  States  to  be  affixed ;  but 
he  is  in  no  wise  obliged  to  do  so,  and,  if  he 
has  changed  his  opinion,  he  may  always  refuse  his 
consent.  But  when  he  has  given  it,  the  treaty  then 
becomes  obligatory  upon  the  United  States,  and  in 
the  energetic  words  of  the  Constitution,  is  an  in- 
tegral part  of  "  the  supreme  law  of  the  land."  How- 
ever, in  1795,  the  question  arose  whether  the 
House  of  Eepresentatives,  in  which  all  bills  for 
raising  revenue  must  originate,  was  constitutionally 
bound  to  vote  the  money  stipulated  by  an  inter- 
national act  to  be  paid.  The  biographer  of  Wash- 
ington has  thus  narrated  what  took  place  on  the 
occasion  of  the  treaty  that  John  Jay  had  just  con- 
cluded with  England : 

"  The  Constitution  declaring  a  treaty,  when  made, 
the  supreme  law  of  the  land,  it  became  essentially 
the  duty  of  the  President  officially  to  announce  it 
to  the  people  of  the  United  States.  In  pursuance 
of  this  duty  he  issued  his  proclamation  dated  the 
last  day  of  February For  the  information  of 


2o6  THE  EXECUTIVE  POWER 

CoDgress,  a  copy  of  this  proclamation  was  trans- 
mitted to  each  House  on  the  first  of  March ...." 

"  The  party  which  had  attained  the  majority  in 
one  branch  of  the  Legislature,  having  openly  denied 
the  right  of  the  President  to  negotiate  a  treaty  of 
commerce,  was  not  a  little  dissatisfied  at  his  ventur- 
*ing  to  issue  this  proclamation  before  the  sense  of 
the  House  of  Representatives,  had  been  declared  on 
the  obligation  of  the  instrument." 

"  This  dissatisfaction  was  not  concealed.     On  the 

second  of  March  Mr.  Livingston .laid  upon 

the  table  a  resolution  requesting  the  President  '  to 
lay  before  the  House  a  copy  of  the  instructions, 

together  with  the  correspondence  and  other 

documents,  relative  to  said  treaty.' The  debates 

soon  glided  into  an  argument  on  the  nature  and 
extent  of  the  treaty-making  power." 

"By  the  friends  of  the  administration  it  was 
maintained  that  a  treaty  was  a  contract  between 
two  nations,  which,  under  the  Constitution,  the 
President,  by  and  with  the  advice  afid  consent  of 
the  Senate,  had  a  right  to  make,  and  that  it  was 
made  when,  by  and  with  such  advice  and  consent, 
it  had  received  its  final  act.  Its  obligations  then 
became  complete  on  the  United  States " 

"  By  the  opposition  it  was  contended  that  the  pow- 
ers to  make  treaties,  if  applicable  to  every  object, 
conflicted  with  powers  which  were  vested  exclusively 
in  Congress.     That  either  the  treaty-making  power 


IN  THE  UNITED  STATES.  207 

must  be  limited  in  its  operation  so  as  not  to  touch 
objects  committed- by  the  Constitution  to  Congress, 
or  the  assent  and  co-operation  of  the  House  of 
Kepresentatives  must  be  required  to  give  validity 
to  any  compact,  so  far  as  it  might  comprehend 
those  objects.  A  treaty,  therefore,  which  required 
an  appropriation  of  money  or  any  act  of  Congress 
to  carry  it  into  effect,  had  not  acquired  its  obliga- 
tory force  until  the  House  of  Kepresentatives  had 
exercised  its  powers  in  the  case.  They  were  at  full 
liberty  to  make  or  withhold  such  appropriation,  or 

other  law " 

"  The  debate was  protracted  without  inter- 
mission until  the  22d  of  March,  when  the  resolution 
was   carried  in  the  afl&rmative   by   sixty-two   to 

thirty-seven    voices." (22d    March,    1795.) 

"  The  situation  in  which  this  vote  placed  the  execu- 
tive was  peculiarly  delicate He  returned  the 

following  answer  to  the  resolution  which  had  been 

presented  to  him 'To  admit  then  a  right  in 

the  House  of  Eepresentatives  to  demand,  and  to 
have,  as  a  matter  of  course,  all  the  paper.s  respect- 
ing a  negotiation  with  a  foreign  power,  would  be 

to  establish  a  dangerous  precedent.'" "The 

course  which  the  debate  has  taken  on  the  resolution 
of  the  House,"  adds  Washington,  "  leads  to  some 
observations  on  the  mode  of  making  treaties  under 
the  Constitution  of  the  United  States."  * 

iLife  of  Washington,  by  John  Marshall,  Vol.  V.,  p.  650  et  seq. 


2o8  THE  EXECUTIVE  POWER 

The  President  then  reminded  them  that  he  had 
been  a  member  of  the  convention ;  that  it  had  in- 
tended to  confer  the  treaty-making  power  on  the 
executive  alone,  with  the  advice  and  consent  of  two- 
thirds  of  the  Senators  present ;  that  every  treaty 
negotiated  and  ratified  in  this  manner  ought  to 
Ifecome  binding ;  and  the  message  adds,-  that  the 
House  of  Eepresentatives,  up  to  that  time,  had  con- 
sented to  and  accepted  this  interpretation  of  the 
fundamental  law ;  so  Washington  refused  to  send  the 
papers  asked  for.  The  House,  in  reply  to  this  mes- 
sage, adopted  resolutions  re-affirming  its  right. 
The  debate  continued,  and  was  assuming  proportions 
of  greater  magnitude,  when  a  member  proposed  to 
vote  the  measures  necessary  for  the  execution  of 
the  treaty!  The  House  finally  understanding  that 
resistance  was  useless,  passed,  the  29th  of  April 
following,  by  a  small  majority,  the  law  which 
put  into  execution  the  treaty  concluded  with  Eng- 
land.^ 

Since,  then,  this  same  question  of  constitutional 
right  has  been  raised  from  {ime  to  time.  Quite 
recently  on  the  occasion  of  the  cession  of  Alaska, 
the  House  of  Representatives  again  assumed  that 
the  President  and  the  Senate  could  not  bind  the 
action  of  Congress;  however,  after  a  somewhat  ani- 
mated debate,  the  concession  was  finally  made,  and 
the  necessary  sums  voted  in  payment  to  Russia. 

1  Life  of  Washington,  by  John  Marshall,  Vol.  V.,  p.  555  ei  seq. 


IN  THE  UNITED  STATES.  209 

An  experience  of  nearly  a  century  proves  that  tlie 
Senate  has  generally  been  ve^y  moderate ;  that  its 
policy  has  been  rather  timid  than  bold  ;  that  it  has  re- 
strained more  than  it  has  urged  forward  the  Execu- 
tive Power.  In  a  word,  it  has  very  often  exercised 
a  control,  all  the  more  salutary,  because  in  a  repub- 
lic there  is  much  greater  peril  in  acting  on  foreign 
questions  than  in  keeping  on  the  defensive.  Indeed 
when  we  examine  the  progressive  development  of 
democratic  ideas,  it  will  readily  be  seen  that  they 
cannot  harmonize  with  the  combinations  of  diplo- 
matic policy.  Secret  alliances  and  .projects,  whose 
execution  can  only  be  slowly  matured,  are  either 
unknown,  or  repugnant,  to  societies  in  which  those 
ideas  prevail.  They  dread  entering  into  engage- 
ments, and  ought  to  avoid  compromising  themselves. 
The  complicated  mechanism  of  a  negotiation  that 
proceeds  through  two  distinct  phases,  is  not  distaste- 
ful to  them.  This  mode  affords  them  protection,  and 
the  executive  can  neither  compromise  nor  pledge 
the  country.  On  the  other  hand  we  have  only  to 
examine  the  international  alliances  concluded  by 
the  United  States,  to  perceive  that  the  intervention 
of  the  Senate  has  often  been  most  advantageous. 
At  the  same  time  if  it  be  true,  as  Americans  believe, 
that  a  system  of  ministerial  responsibility  is  incom- 
patible with  the  very  existence  of  the  republic, 
legislatures  certainly  should  not  be  vested  with  the 

power  of  granting  or  withholding  consent  to  the 
14 


2IO  THE  EXECUTIVE  POWER 

ratification  of  treaties.  It  necessarily  follows  that 
the  President  must  h^ve  near  him  a  governmental 
council. 

The  inquiry  has  been  made  whether  it  would  be 
preferable  to  disconnect  this  council  from  the  legis- 
lative assemblies  ?  But  why,  it  is  said  in  reply,  add 
to  the  machinery  of  the  Constitution?  Again, 
without  here  investigating  how  far  the  Senate 
gains  by  this  combination,  does  not  the  executive 
derive  from  it  great  advantages,  and  may  not  the 
country  place  entire  confidence  in  the  control  that 
this  body  exercises  over  the  foreign  affairs  of  the 
Union  ? 

In  what  manner  does  the  Senate  intervene  in  the 
nomination  of  public  functionaries  ? 

The  President  is  the  head  of  the  executive 
administration ;  he  gives  his  orders ;  it  is  his  duty 
to  take  care  that  his  agents  in  their  respective 
spheres  of  action  fulfill  the  mission  confided  to  them. 
However,  if  we  examine  American  legislation,  it  is 
to  be  remarked,  that  as  a.  general  thing  public 
officers  are  not  to  be  political  agents;  in  effect,  if 
we  except  the  foreign  representatives  of  the  United 
States,  we  find  in  the  administration  the  members 
of  the  magistracy  and  treasury  agents ;  the  officers 
connected  with  the  mail,  pension,  public  land,  Indian 
and  patent  service ;  those  appointed  to  the  territories 
and  finally  the  army  and  the  navy  officers.  The 
federal  power,  then,  properly  speaking,  sends   no 


IN  THE  UNITED  STATES.  2H 

political  representatives  among  the  people.  Etow- 
ever,  the  force  of  circumstances  has  so  greatly 
changed  this  provision  of  the  law,  that  the  collectors 
of  customs  have  become  in  fact  the  depositaries  of 
the  ideas  and  purposes  of  the  government,  and 
postmasters  give  as  much  attention  to  the  elections 
as  to  the  service  of  the  mails. 

In  this  way  the  administration  has  become  quite 
different  from  what  was  originally  designed  by  its 
framers.  Doubtless,  we  ought  not  to  be  surprised 
at  what  has  actually  taken  place.  A  government 
cannot  exist  without  political  agents,  and  propor- 
tionably  with  its  development  the  exigencies  of  the 
situation  bear  so  heavily  on  it  that  it  requires  to  be 
represented  among  the  people,  to  be  placed  in  con- 
tact with  them,  and,  in  a  word,  to  act  upon  them ; 
and  the  state  organizations  cannot  serve  as  a  me- 
dium to  eftect  this.  In  the  course  of  this  inves- 
tigation we  shall  see  how  those  independent  autono- 
mies are  brought  into  relations  with  the  Executive 
Power,  and  in  what  manner  and  within  what  limits 
it  may  interpose,;  but  these  intervening  relations 
are  not  sufficient  to  assure  to  the  government  the 
strength  it  needs. 

Impelled  by  the  urgency  of  these  demands,  the 
treasury  agents  and  other  officials  dependent  on  the 
executive  departments,  have  gone  beyond  the  limits 
of  their  appropriate  and  legitimate  sphere  of  duty. 
If,  meanwhile,  we  look  into  the  manner  of  appoint- 


212  THE  EXECUTIVE  POWER 

ing  them,  it  is  easier  to  understand  wliy  they  are 
almost  irresistibly  led  to  interest  themselves  in 
politics.  There  is  no  administrative  hierarchy  in 
the  United  States.  A  functionary  is  for  the  most 
part  selected  almost  at  random,  and  he  knows  that 
he  will  not  remain  long  in  office.  The  idea  of  a 
strongly  organized  civil  service,  such  as  exists  in 
Germany,  for  instance,  or  in  certain  branches  of 
the  French  financial  administration,  has  not  yet 
reached  the  American  mind.  But  we  must  not, 
however,  conclude  that  the  President  is  free  to  give 
public  offices  to  those  in  whom  he  has  the  most 
confidence  ;  on  the  contrary,  the  persons  from  whom 
his  selections  are  made,  form,  in  fact,  rather  a  small 
circle.  He  is  constrained  to  resort  to  the  politi- 
cians, and  among  them  he  recruits  the  office- 
holders. If  now  what  has  already  been  said  re- 
garding party  organization  be  recalled,  it  is  easy  to 
see  how  things  are  managed.  In  the  primary  meet- 
ings, heretofore  mentioned,  some  leaders  prepare 
the  success  of  a  candidate,  and  it  would  be  difficult 
for  him  to  refuse  to  reward  their  services.  In  the 
national  convention  it  usually  happens  that  a  small 
number  of  politicians  will  control  the  nomination 
of  the  candidate  for  President,  which  the  electors 
will  ratify  at  a  later  day.  When  he  is  elected,  those 
who  have  so  greatly  contributed  to  his  success  will 
naturally  have  a  right  to  his  grateful  recognition, 
and  even  if  we  admit  that  no  previous  agreement 


IN  THE  UNITED  STATES.  213 

existed,  how  can  lie  overlook  sucb.  assistance  ?  In 
this  way  he  will  have,  in  most  cases,  made  his 
selections  in  advance. 

In  the  United  States  politicians^  as  a  class,  are 
much  maligned,  but  it  is  impossible  to  govern 
without  their  aid;  if  amongst  them  are  corrupt 
men,  there  are  also  others,  who  render  eminent 
service  to  their  country.  Good  and  evil  are  there- 
fore so  blended  that  it  is  difficult  to  foresee  the 
effect  on  American  politics  of  a  radical  reform  of 
existing  customs.  However  that  may  be,  in  the 
first  stage  of  party  organization,  as  in  national  con- 
ventions, the  same  system  is  found ;  the  same  ideas 
of  patronage  prevail.  Hence  arises  the  maxim,  al- 
most savage  in  its  brutality — "  to  the  victors  belong 
the  spoils." 

On  account  *  of  the  influence  which  it  gives, 
patronage  is  in  general  sought  for  with  avidity  by 
Senators  and  Representatives  in  Congress.  This 
renders  the  position  of  the  President  difficult.  He 
nominates  for  public  offices,  but  he  can  scarcely  be 
said  to  have  freedom  of  choice,  for  he  has  not  only 
to  reward  those  who  have  served  him,  but  also  to 
regard  the  wishes  expressed  by  members  of  Con- 
gress and  the  necessities  of  their  position.  Mr. 
Lincoln  was  one  day  asked  by  one  of  his  sincere 
and  devoted  friends — "Who  is  President,  you  or 
A  ?  "  This  is  what  led  to  this  strange  question : 
A  had,  as  a  strict  Republican,  energetically  sus- 


214  THE  EXECUTIVE  POWER 

tained  ttie  policy  of  the  administration  in  the  House 
of  Representatives,  and  at  the  commencement  of  the 
presidency  of  Mr.  Lincoln  had  pressed  the  appoint- 
ment of  B  as  postmaster  of  the  most  important 
place  of  his  district.  B  was  an  honest  man  and  a 
good  citizen,  and  the  choice  was  therefore  a  for- 
tunate one.  He  became  an  excellent  employe.  His 
politics  remained  unchanged,  and  he  spared  no 
effort  to  aid  the  prosecution  of  the  war.  He  was 
popular  with  the  people  of  the  town,  the  Postmas- 
ter-general approved  his  conduct,  and  even  his 
political  adversaries  did  not  complain  of  him.  But 
he  made  one  fatal  mistake ;  he  did  not  pay  sufficient 
deference  to  A;  he  even  went  so  far  as  to  criticise 
one  or  two  of  his  speeches,  disapprove  two  of  his 
votes,  and  state  that  be  would  no  longer  'support 
him.  So  soon  as  A  was  apprised  of  these  facts,  he 
went  immediately  to  the  President  and  asked  B's 
dismissal.*  "I  must  do  it/'  said  Mr.  Lincoln  to  the 
friend  to  whom  he  confided  his  embarrassment.  "  I 
regret  it  exceedingly,  but  it  cannot  be  helped." 
His  friend  then  inquired,  ^'  Who  is  President,  you 
or  A  ?  "  "  A  is  President,"  answered  Mr.  Lincoln. 
This  great  patriot  then  explained  to  his  friend 
that  everything  must  be  made  to  yield  to  the  neces- 
sities of  the  war ;  that  he  must  not  weaken  his 
administration ;  that  it  was  better  that  he  should 
be  accused  of  weakness  than  alienate  members  of 
Congress  ;  that  he  must  at  every  cost  avoid  a  divi- 


IN  THE  UNITED  STATES.  215 

sion  of  those  forces  which  the  government  so 
greatly  needed.  Unfortunately  the  situation  re- 
mains unchanged,  although  the  urgent  necessities 
of  that  period  no  longer  exist.  The  system  now 
in  force  may  thus  be  described :  Those  districts 
represented  in  Congress  bj  faithful  Eepublicans — 
that  is  to  say,  by  Eepublicans  who  sustain  the 
administration,  so  long  as  it  does  their  bidding — 
belong  to  them,  and  they  dispose  of  its  patronage. 
The  districts  that  send  Democrats,  or  opponents  of 
the  administration,  are  controlled  by  the  Senators 
of  the  State,  if  they  support  the  administration. 
When  it  occurs  that  the  Representatives  of  a  dis- 
trict and  the  Senators  from  the  State  are  both  of 
the  opposition,  the  patronage  reverts  to  the  Presi- 
dent and  his  Cabinet.  Such  is  the  custom,  and  if 
the  executive  is  not  disposed  to  comply  with  it,  he 
excites  the  most  violent  discontent. 

When  General  Grant  entered  upon  the  office  of 
President  he  had  made  no  engagements  with  the 
party  leaders^  who  had  elected  him.  It  might 
have  been  supposed  that  he  would  seek  to  restore 
to  the  executive  authority  its  ancient  and  unfettered 
right  to  nominate  for  public  offices.  But  the  prac- 
tice of  bestowing  patronage  had  taken  such  deep 
root  that  he  soon  perceived  that  such  an  attempt 
would  be  unavailing.  He  was  then  obliged  to  yield 
to  the  usage  and  follow  the  example  of  his  prede- 

1  See  "  The  Nation,"  No.  370,  August  1, 1872. 


2i6  THE  EXECUTIVE  POWER 

cessors.  Abuses  necessarily  became  more  alarming 
as  the  necessities  of  the  war  had  developed  in  the 
country  an  administrative  force  of  greater  numbers 
and  strength.  An  evil  which  might  be  tolerated 
when  there  were  but  few  office-holders,  became  in- 
supportable when  their  number  reached  nearly  sixty 
thousand. 

How  far  would  the  adoption  by  the  United  States 
of  the  administrative  rules  enforced  in  other  coun- 
tries modify  the  situation?  Would  the  formation  of 
a  civil  hierarchy  be  compatible  with  a  free  democ- 
racy? It  would  be  impossible  as  yet  to  say. 
There  is  an  evident  and  pressing  necessity  for  an 
entire  change  in  the  present  state  of  things ;  but 
up  to  the  present  time  no  one  has  discovered  an  ef- 
ficacious means  of  suppressing  this  disorder.  How- 
ever that  may  be,  Congress  should  first  be  forced  to 
return  to  its  allotted  sphere  of  duty,  and  to  renounce 
the  patronage  which  exercises  over  it  so  corrupt- 
ing an  influence,  and  the  President  especially 
should  regain  the  exercise  of  one  of  his  essential 
prerogatives.  As  the  "Federalist"  said,  "the  true 
test  of  a  good  government  is  its  aptitude  and  ten- 
dency to  produce  a  good  administration."  Now 
how  can  this  be  attained  when  the  executive 
agents  are  not  really  the  men  of  his  choice,  and  he 
is  forced  to  submit  to  the  wishes  and  caprices  of 
members  of  Congress  ? 

The   framers   of  the   Constitution   intended  to 


IN  THE  UNITED  STATES.  217 

reserve  to  the  executive  the  power  to  choose  the 
functionaries  of  the  governraent ;  the  intervention 
of  the  Senate  was  expected  to  give  greater  stability 
to  the  administration.  Thus  the  constitutional 
provision  was  intended  not  so  much  to  guard  against 
any  possibly  bad  selections  by  the  President,  as 
to  build  up  a  certain  order  of  things.^ 

However,  at  that  period  grave  objections  were 
made  against  the  co-operation  of  the  Senate  with 
the  President.  Some  asserted  that  it  would  lead 
him  to  exercise  an  undue  influence  over  the  Sen- 
ate; others,  that  the  Senate  would  intrench  upon 
his  functions.  Hamilton  met  these  strictures 
by  a  well-known  process  of  reasoning.  He  said 
that  these  two  arguments  destroyed  each  other. 
But  he  was  for  once  mistaken,  for  both  are  equally 
well  founded.  The  history  of  the  relations  between 
the  President  and  the  Senate  actually  shows  that 
he  almost  always  uses  his  patronage  to  secure  a 
majority  in  that  body,  and  that  it  invades  his  do- 
main by  forcing  upon  him  its  applicants  for  public 
offices.  Lamentable  disorder  is  the  result,  and  al- 
though the  Constitution  wisely  surrounded  him 
with  an  executive  council,  it  is  none  the  less  cer- 
tain that  hitherto  it  has  been  impossible  to  separate 
exactly  his  personal  privileges  from  those '  of  his 
council.  In  ordinary  practice,  as  the  opposition 
is  not  considered,  the  Senators  who  belong  to  the 

iThe  "  FederaUst,"  p.  529  et  seq. 


2i8  THE  EXECUTIVE  POWER 

majority  may,  in  regard  to  the  question  of  offices, 
be  classed  in  two  divisions.  There  are  some  whose 
secure  personal  position  renders  them  indifferent 
to  patronage ;  but  there  are  others  who  can  only 
succeed  in  sustaining  themselves  by  a  skillful  dis- 
tribution of  it.  The  latter  are  usually  ready  to 
support  all  the  measures  of  the  administration, 
less  from  conviction  than  a  desire  to  propitiate 
the  favoiyof  the  President.  Hence  a  continual 
exchange  of  good  offices  between  him  and  them. 
They  give  their  votes  and  dispose  of  appointments, 
so  that,  by  an  abuse  arising  from  an  easily  recognized 
cause,  an  unscrupuloas  Senator  imposes  humiliating 
conditions  on  a  President,  who  cannot  readily  dis- 
pense with  his  support.  In  this  way  constitutional 
provisions  regarding  a  choice  of  functionaries  are  in 
part  evaded;  the  executive  loses  the  strength  and 
freedom  of  the  initiative  which  the  fundamental  law 
designed  to  give  him.  The  Senate,  on  the  other 
hand,  loses  its  independence ;  the  duties  enjoined 
upon  it  as  his  council  are  measurably  shorn  of 
their  importance,  and  it  at  the  same  time  forgets 
or  disregards  its  legislative  functions. 

This  difficult  subject  has  engaged  the  atten- 
tion of  the  best  minds  of  the  country  for  some 
years  past,  and  they  have  found,  as  they  suppose, 
the  solution  of  the  problem.  The  method  which 
they  recommend  is : 

1.  To  create  a  civil  hierarchy. 


IN  THE  UNITED  STATES.  219 

2.  To  forbid  office-holders  attending  to  politics^ 
and  especially  taking  an  active  part  in  electoral 
campaigns. 

It  is  certain  that  when  an  administration  could 
be  recruited  from  its  own  ranks  there  would  be  no 
longer  any  reason  for  "  dividing  the  spoils  "  after 
each  election ;  a  body  of  officials  would  be  formed 
animated  by  the  proper  spirit  and  interested  in  their 
duties.  The  President  would  select  from  them 
those  who  best  merit  advancement,  and  would  be 
guided  by  fixed  rules  in  so  doing.  Then  it  would 
only  remain  for  the  Senate  to  exercise  a  kind  of 
general  supervision. 

Such  a  reform  would  doubtless  put  an  end  to  the 
most  crying  abuses  of  the  system  noAV  in  force. 
These  changes  seem  to  be  very  desirable,  with 
reference  to  the  upright  and  efficient  management 
of  public  affairs  and  to  the  political  morality  of  the 
country,  and  yet  they  can  not  be  advocated  without 
some  uneasiness.  It  is  easy  to  tell  how  a  good 
administration  may  be  formed,  but  it  is  not  so 
easy  to  foresee  how  far  a  permanent  hierarchy 
would  be  compatible  with  the  existence  of  great 
political  parties. 

No  matter  .how  free  a  democracy  may  be  sup- 
posed, there  is  always  among  certain  classes  of  the 
people  a  feeling  of  indifference  to  public  affairs,  and 
political  absenteeism  has  to  be  incessantly  com- 
batted. 


220  THE  EXECUTIVE  POWER 

Now  the  great  skill  of  parties  is  shown  in  keep- 
ing the  interest  of  the  masses  constantly  aroused, 
and  when  election  day  arrives  to  induce  them  to 
go  to  the  polls.  What  will  be  the  effect  of  remov- 
ing the  powerful  motive  that  contributes  so  much 
to  excite  their  action,  by  destroying  the  interests 
which  a  hope  of  office  keeps  alive?  Is  it  not 
to  be  feared  that  a  contest  for  principles  alone  will 
not  suffice  to  hold  together  all  the  elements  of  a 
political  organization  ?  If,  then,  the  creation  of  an 
administrative  hierarchy  would,  as  there  is  reason  to 
fear,  result  in  a  diminution  of  the  public  life,  it  is 
evident  that  the  meditated  reform,  however  impor- 
tant from  other  stand-points,  might  tend  to  produce 
an  irreparable  evil.  And  in  this  connection,  one  of 
the  most  complicated  problems  involved  in  the  organ- 
ization of  free  democracies  is  presented.  How  is  a 
nation  of  forty  millions  of  men  to  be  induced  to 
give  constant  attention  to  public  affairs?  The 
American  people  have  considered  these  difficulties, 
but  not  solved  them.  They  have  instructed  their 
politicians  to  form  and  maintain  parties,  and  con- 
fided to  them  the  task  of  explaining,  periodically, 
political  issues.  In  fact  they  have  simply  reserved 
to  themselves  the  sovereign  right  of  deciding  be- 
tween these  different  organizations  thus  formed. 
Moreover,  they  have  resigned  to  those  active  mana- 
gers, who  have  secured  a  favorable  popular  verdict 
for  their   party,  the  right  of  dividing  the  public 


IN  THE  UNITED  STATES.  221 

offices  between  them. .  If  it  be  now  withdrawn 
there  is  reason  for  apprehending  that  so  radical  a 
change  will  disorganize  the  whole  political  machine ; 
so  that  in  applauding  the  motives  of  American  re- 
formers it  is  important  to  know  if  thej  have  ex- 
actly measured  the  question  in  its  fullest  extent, 
and  if  their  remedy  for  existing  evils  would  not, 
if  applied,  result  in  impairing  the  public  spirit  of 
the  country.  These  are  serious  inquiries,  to  which 
it  would  be  as  yet  impossible  to  give  a  satisfactory 
answer.^ 

While  we  indicate  these  perplexities,  we  pro- 
pose to  limit  ourselves  to  the  remark,  that,  ac- 
cording to  the  Constitution,  the  executive  has  the 
exclusive  right  of  nominating  all  the  functionaries 
of  the  United  States.  Doubtless  he  could  impose 
such  administrative  regulations  as  would  organize 
the  civil  service  upon  a  plan  somewhat  analagous 
to  that  adopted  for  the  army  and  navy,  but  this 
should  only  be  attempted  with  great  caution — by 
feeling,  as  it  were,  the  way  at  every  step — and  in 
such  manner  as  not  to  destroy  the  great  political 
parties  Avhose  existeoce  may  perchance  be  indis- 
pensable to  the  maintenance  of  liberty. 

And  yet,  again,  the  convention  acted  wisely  in 
placing  near  the  President  an  executive  council 
authorized  to  revise  and,  if  necessary,  defeat  his 

1  We  would  here  particularly  recommend  to  the  reader  a  speech 
that  Senator  Schurz  delivered  In  the  Senate,  Jan.  27,  1871,  and 
which  was  published  under  the  title  of  "  Civil  Service  Reform." 


222  THE  EXECUTIVE  POWER 

nominations ;  but  its  functions  can  be  usefully  exer- 
cised only  on  condition  of  remaining  within  the 
limits  assigned  to  it  by  the  Constitution.  It  is  in 
fact  indispensable  that  the  administrative  patronage 
should  no  longer  be  controlled  by  the  legislative 
bodies,  and  in  particular  by  the  Sensite. 

In  this  matter  there  can  be  but  little  doubt ; 
these  changes  will  be  made ;  the  most  distinguished 
minds  demand  them,  and  sooner  or  later  the  popu- 
lar voice  will  insist  on  them.  We  may  then  look 
forward  to  legislation  forbidding,  under  severe  pen- 
alties, any  member  of  either  house  presenting  to 
the  President  candidates  for  public  offices.  As  may 
be  seen,  this  reform  would  not  necessarily  imply 
the  creation  of  an  administrative  hierarchy  ;  but  it 
would  have  the  double  effect  of  confining  Congress 
to  the  exercise  of  its  appropriate  functions,  and.  of 
assuring  its  independence  of  the  executive.  At. 
the  same  time  the  Senate  would  freely  exercise  the 
control  over  executive  nominations,  confided  to  it 
by  the  Constitution. 


CHAPTER  IX. 

RELATIONS  OF  THE  PRESIDENT  TO  THE  STATES. 

IT  has  been  shown,  in  the  preceding  chapters, 
that  the  framers  of  the  Constitution  were  in 
favor  of  creating  a  vigorous  Executive  Power, 
and  making  it,  as  far  as  possible,  independent  of 
the  legislative  branch  of  the  government.  There 
is  no  longer  any  doubt  that  their  conception  was 
just,  and  that  they  understood  the  true  nature  of 
republican  institutions. 

However,  the  Executive  Power,  such  as  they 
conceived  it,  would  ere  long  have  exceeded  its  pre- 
scribed limits  if  the  independence  of  the  States  had 
been  wholly  destroyed.  It  is  owing  to  the  consti- 
.tutional  recognition  of  their  existence  and  author- 
ity that  a  free  republic  has  been  upheld  in  the 
United  States.  After  an  experience  of  nearly  a 
century,  and  an  expression  of  concurring  opinions 
by  the  most  distinguished  statesmen  in  favor  of 
maintaining  these  local  governments,  it  would  seem 
superfluous  to  an  American  to  insist  on  this  point, 
or  to  prove  their  necessity.  Nevertheless,  as  these 
ideas  are  not  so  fully  accepted  elsewhere,  it  may 
(223) 


224  THE  EXECUTIVE  POWER 

be  useful  to  explain  why  in  the  United  States  the 
existence  of  the  States  is  an  indispensable  safe- 
guard of  republican  liberty. 

"The  federal  government,"  says  the  Supreme 
Court  in  a  leading  case,  ''proceeds  directly  from 
the  people;  is  ordained  and  established  in  the. 
name  of  the  people,  and  is  declared  to  be  ordained 
in  order  to  form  a  more  perfect  union,  establish 
justice,  ensure  domestic  tranquillity,  and  secure  the 
blessings  of  liberty  to  themselves  and  to  their  pos- 
terity. The  assent  of  the  States,  in  their  sover- 
eign capacity,  is  implied  in  calling  a  convention, 
and  thus  submitting  that  instrument  to  the  people. 
But  the  people  were  at  perfect  liberty  to  accept 
or  reject  it,  and  their  act  was  final.  It  required  not 
the  afl&rmance  and  could  not  be  negotiated  by  the 
State  governments.  The  Constitution,  when  thus 
adopted,  was  a  complete  obligation,  and  bound  the 
State  sovereignties. 

"The  government  of  the  Union,  then,  is  em- 
phatically and  truly  a  government  of  the  people.* 
In  form  and  in  substance  it  emanates  from  them. 
Its  powers  are  granted  by  them,  and  are  to  be 
exercised  directly  on  them,  and  for  their  benefit. 
This  government  is  acknowledged  by  all  to  be  one 
of  enumerated  powers.  The  principle  that  it  can 
only  exercise  the  powers  granted  to  it  is  apparent. 

The   Government    of    the   Union,   tbough 

limited  in  its  powers,  is  supreme  within  its  sphere 


IN  THE  UNITED  STATES.  225 

of  action It  is  the  governmeat  of  all ;    its 

powers  are  delegated  bj  all ;  it  represents  all,  and 

acts  for  all But  this  question  is  not  left  to 

mere  reason ;  the  people  have,  in  express  terms, 
decided  it  by  saying,  this  Constitution  and  the  laws 
of  the  United  States,  which  shall  be  made  in  pur- 
suance thereof, shall  be  the  supreme  law  of 

the  land,  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding."  ^ 

Thus  the  people  of  the  United  States  constitute 

a  nation  placed  under  one  government,  but  " 

on  the  other  hand  the  people  of  each  State  com- 
pose a  State,  having  its  own  government  and 
endowed  with  all  the  functions  essentifetl  to  separate 
and  independent  existence.  The  States  disunited 
might  continue  to  exist.  Without  the  States  in 
union  there  could  be^  no  such  political  body  as  the 
United  States " 

" But  in  many  articles  of  the  Constitution 

the  necessary  existence  of  the  States,  and  within 
their  proper  spheres  the  independent  authority  of 
the  States,  is  distinctly  recognized.  To  them  nearly 
the  whole  charge  of  interior  regulation  is  committed 
or  left ;  to  them  and  to  the  people  all  powers  not 
expressly  delegated  to  the  national  government  are 
reserved.     The  general  condition  was  well  stated 

1  McCullough  vs   State  of  Maryland,  4  Wheaton,  p.  316   et  seq. 
Decision  of  Mr.  Chief  Justice  Marshall. 
15 


226  THE  EXECUTIVE  POWER 

by  Miv Madison,  in  the  "Federalist,"  thus:  'The 
Federal  and  State  governments  are,  in  fact,  but 
different  agents  and  trustees  of  the  people,  consti- 
tuted with  different  powers  and  designated  for  differ- 
ent purposes.'.." "^ 

The  State,  on  her  admission  into  the  Union,  sur- 
renders a  portion  of  her  sovereignty  to  the  federal 
government,  and  in  "this  regard  there  is  no  distinc- 
tion between  the  original  States  and  those  subse- 
quently formed.  However,  it  is  important  to  notice, 
that  this  surrender  or  delegation  of  power  is  not 
made  by  the  State,  but  really  and  in  fact  by  the  peo- 
ple thereof.  It  is  they  who  actually  decide  to  enter 
the  Union.  They  then  ratify  the  division  of  powers 
between  the  federal  and  the  State  governments, 
reserving  to  themselves  all  the  prerogatives  of  sov- 
ereignty not  conferred  on  either. 

It  happens  in  this  way  that,  in  their  respective 
spheres,  these  two  organizations  have  scarcely  any- 
thing in  common.  The  one  is  invested  with  various 
prerogatives,  the  exercise  of  which  has  been  confi- 
ded to  it  by  the  Constitution ;  each  State,  considered 
as  an  autonomy,  exerts,  on  the  contrary,  those 
powers  bestowed  upon  her  by  her  people.  This 
doctrine  suggested  to  President  Jackson  the  follow- 
ing reflections:  "The  destruction  of  our  State 
governments,  or  the  annihilation  of  their  control 

1  See  the  decision  of  the  Supreme  Court,  given  by  Mr.  Chief 
Justice  Chase,  in  the  case  of  Lane  County  vs.  Oregon.  See  7  Wal- 
lace :  and  McPherson's  Manual  for  1869,  p.  440  et  seq. 


IN  THE  UNITED  STATES.  227 

over  the  local  concerns  of  the  people,  would  lead 
directly  to  revolution  and  anarchy,  and  finally  to 
despotism  and  military  domination.  In  proportion, 
therefore,  as  the  general  government  encroaches 
upon  the  rights  of  the  States,  in  the  same  propor- 
tion does  it  impair  its  own  power."^ 

However,  the  Constitution  declares  that  "the 
United  States  shall  guarantee  *fco  every  State  in  this 
Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion ;  and  on 
application  of  the  Legislature,  or  of  the  executive 
(when  the  Legislature  cannot  be  convened),  against 
domestic  violence."  ^ 

^  This  article  has  given  rise  to  long  and  animated 
discussions,  and  the  opposing  parties  are  evidently 
far  from  agreeing  as  to  its  true  construction. 

The  framers  of  the  Constitution  thought  that  a 
faction  might  triumph  in  some  one  of  the  States, 
overthrow  its  republican  institutions,  and  establish 
in  their  stead  a  monarchy  or  a  despotism ;  they 
then  foresaw  that  circumstances  might  thus  occur 
when  the  federal  government  would  be  rendered 
powerless.  The  "  Federalist "  expressed  this  appre- 
hension in  the  following  terms :  "  In  a  confederacy 
founded  on  republican  principles  and  composed  of 
republican  members,  the  superintending  govern- 
ment ought  clearly  to  possess  authority  to  defend 

1  Inaugural  Address,  March  4,  ItSS..  Presidents'  Messages,  p.  477. 

2  Constitution,  Article  IV.,  Section  4. 


228  THE  EXECUTIVE  POWER 

the  system  against  aristocratic  or  monarcliical  inno- 
vations. The  more  intimate  the  nature  of  such  a 
Union  may  be,  the  greater  interest  have  the  mem- 
bers in  the  political  institutions  of  each  other,  and 
the  greater  right  to  insist  that  the  forms  of  govern- 
ment, under  which  the  compact  was  entered  into, 
should  be  substantially  maintained."  ^ 

This  clause,  then,  leaves  to  the  people  of  each  State 
the  absolute  right  to  modify  the  forms  of  their 
republican  institutions,  but  forbids  them  to  sub- 
stitute in  their  stead  such  as  are  monarchical  or  aris- 
tocratic. If  this  prohibition  is  violated,  the  federal 
government  should  at  once  intervene.  However, 
this  rule  of  action,  which  in  the  abstract  seems  so 
clear,  has  not  always  been  of  easy  application.  For 
instance,  at  the  period  preceding  the  civil  war 
certain  States  of  the  south  had  modified  their 
"  republican  institutions  "  to  such  an  extent  as  to 
render  them  true  aristocracies;  neyertheless,  the 
federal  government  never  thought  of  interposing 
its  authority.  If  it  subsequently  did  so  in  a  very 
energetic  manner,  it  was  only  because  exceptional 
circumstances  gave  it  the  opportunity.  ISTor  was 
it,  then,  in  virtue  of  this  clause  of  the  Constitu- 
tion. It  determined  to  resist  by  force  the  secession 
movement,  because  the  life  of  the  nation  was  in- 
volved in  the  issue.  The  importance  of  this  guar- 
antee was  only  revealed  at  a  later  period,  when  the 

1  The  "  Federalist,"  p.  132  et  seq. 


IN  THE  UNITED  STATES.  229 

re-establishment  of  the  insurrectionary  States  in 
the  Union  was  considered ;  but  this  is  not  the  place 
to  present  the  arguments  advanced  on  either  side 
after  the  triumph  of  the  federal  arms. 

In  case  an  insurrection  bursts  forth  in  any  one  of 
the  States,  and  overthrows  a  republican  form  of 
government,  the  President  should  act  without  delay, 
as  on  him  would  first  devolve  the  task  of  meeting 
the  danger  and  re-establishing  order.  All  the 
forces  of  the  United  States  are  placed  at  his  dispo- 
sition, and  it  is  his  duty  to  determine  the  employ- 
ment that  shall  be  made  of  them. 

Besides,  it  is  difficult  to  understand  the  bearing 
of  this  guarantee  clause  without  examining  the 
latter  part  of  the  section  containing  it,  and  consult- 
ing the  adjudication  of  the  Supreme  Court  to 
which  it  gave  rise,  under  the  following  circum- 
stances: The  abettors  of  a  revolutionary  organiza- 
tion in  Ehode  Island  proclaimed  it  to  be  the  lawfully 
constituted  government  of  the  State,  and  resorted 
to  force  to  maintain  it  against  the  pre-existing  gov- 
ernment. Both  were  in  form  republican,  but  the 
latter  continued  in  the  exercise  of  its  functions, 
suppressed  the  armed  opposition  to  it,  and  enforced 
the  due  execution  of  its  laws.  A  suit  grew  out  of 
some  of  the  proceedings  connected  with  this  un- 
fortunate affair,  and  one  of  the  questions  raised 
was  evidently  designed  to  elicit  from  the  court 
an  expression  as  to  which  was  the  rightful  gov- 


230  THE  EXECUTIVE  POWER 

ermnent.  Mr.  Chief  Justice  Taney  delivered  the 
opinion : 

" Moreover,  the  Constitution  of  the  United 

States,  as  far  as  it  has  provided  for  an  emergency 
of  this  kind,  and  authorized  the  general  govern- 
ment to  interfere  in  the  domestic  concerns  of  a 
State,  has  treated  the  subject  as  political  in  its 
nature,  and  placed  the  power  in  the  hands  of  that 
department." 

"  Under  this  article  of  the  Constitution  it  rests 
with  Congress  to  decide  what  government  is  the 
established  one  in  the  State.  For  as  the  United 
States  guarantees  to  each  State  a  republican  govern- 
ment, Congress  must  necessarily  decide  what  gov- 
ernment is  established  in  the  State  before  it  can 
determine  whether  it  is  republican  or  not.  And 
when  the  Senators  and  Kepresentatives  of  a  State 
are  admitted  into  the  councils  of  the  Union,  the 
authority  of  the  government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is 
recognized  by  the  proper  constitutional  authority. 

Yet  the  right  to  decide  is  placed  there  and 

not  in  the  courts ..." 

"  So,  too,  as  relates  to  the  clause  in  the  above- 
mentioned  article  of  the  Constitution,  providing  for 
cases  of  domestic  violence.  It  rested  with  Con- 
gress to  determine  upon  the  means   proper  to  be 

adopted  to  fulfill  this  guarantee The  act  of 

February  28,  1795,  provided  that  'in  case  of  an  in- 


IN  THE  UNITED  STATES.  231 

surrection  in  any  State  against  the  government 
thereof,  it  shall  be  lawful  for  the  President  of  the 
United  States,  on  application  of  the  Legislature  of 
such  State,  or  the  executive  (when  the  Legislature 
cannot  be  convened),  to  call  forth  such  number  of 
the  militia  of  any  other  State  or  States  as  may  be 
applied  for,  as  he  may  judge  sufficient  to  suppress 
such  insurrection.' 

"  By  this  act  the  power  of  deciding  whether  the 
exigency  had  arisen  upon  which  the  government 
of  the  United  States  is  bound  to  interfere  is  given 
to  the  President.  He  is  to  act  upon  the  application 
of  the  Legislature,  or  of  the  executive,  and  conse- 
quently he  must  determine  what  body  of  men 
constitute  the  Legislature,  and  who  is  the  Governor, 
before  he  can  act.  The  fact  that  both  parties  claim 
the  right  to  the  government  cannot  alter  the  case, 
for  both  cannot  be  entitled  to  it.  If  there  is  an 
armed  conflict  like  the  one  we  are  speaking  of,  it 
is  a  case  of  domestic  violence,  and  one  of  the  parties 
must  be  in  insurrection  against  the  lawful  govern- 
ment. And  the  President  must  of  necessity  decide 
which  is  the  goverment,  and  which  party  is  unlaw- 
fully arrayed  against  it,  before  he  can  perform  the 
duty  imposed  upon  him  by  the  act  of  Congress."  ^ 

So  that,  in  affairs  of  such  delicacy,  it  devolves 
upon  the  head  of  the  Executive  Power  to  decide. 

The  explanations  heretofore  given  of  the  powers 

1  Lutlier  vs.  Barden,  7  Howard,  p.  1  et  seq. 


233  THE  EXECUTIVE  POWER 

of  peace  and  war,  and  the  obligations  that  the  de- 
fense of  the  country  imposes  on  the  President,  suf- 
fice to  show  in  what  manner  the  practice  under  the 
CoDstitution  has  determined  the  meaning  of  the 
second  clause  of  the  section. 

However,  the  calling  out  the  militia  at  the  begin- 
ning of  the  civil  war  raised  a  very  serious  question. 
When  President  Lincoln  issued  a  proclamation 
inviting  the  Governors  of  the  States  to  furnish  their 
respective  portions  of  the  contingent,  several  among 
them  refused  to  comply,  on  the  pretense  that  his 
call  was  unconstitutional.  But  Congress  soon  put 
an  end  to  this  disorder.  The  government,  having 
derived  its  powers,  not  from  the  States,  but  from 
the  people,  it  appealed  directly  to  the  latter,  and 
not  to  any  intervening  agency,  and  provided  that, 
if  need  be,  federal  officers  in  the  several  States 
should  be  appointed  with  full  authority  to  proceed 
to  a  direct  recruitment. 

Thus,  if  we  do  not  include  the  exceptional  cases 
just  mentioned,  the  Union  and  the  States  act,  if  we 
may  say  so,  in  distinct  and  independent  spheres. 
The  President  and  Congress  should  abstain  from 
asserting  the  powers  delegated  by  the  people  to  .the 
local  governments.  The  latter  cannot  rightfully 
suspend  the  national  authority  or  interfere  with 
its  exercise.  If,  then,  the  government  of  the  United 
States  is  not  a  league  or  confederacy  of  States,  as 
separate  and  sovereign  communities  united  by  a 


IN  THE  UNITED  STATES.  233 

compact,  neither  is  it  a  consolidated  government, 
without  limitation  of  powers,  representing  the 
entire  sovereignty.  It  was  designed  to  maintain 
not  only  the  supremacy  of  the  national  authority, 
but  also  the  reserved  rights  of  the  States.  Federal 
encroachments  on  those  rights  would  be  fatal  to 
republican  institutions  on  this  continent. 

We  may  readily  see  that,  should  the  autonomy 
of  the  States  disappear,  the  Executive  Power  would 
at  once  essentially  change  and  assume  inordinate 
proportions.  It  is  to  a  great  extent  confined  by 
the  State  governments  to  that  sphere  of  action  pre- 
scribed for  it  by  the  Constitution.  In  fact,  inces- 
sant conflicts  would  take  place  between  the  execu- 
tive, which  is  independent  within  the  scope  of  its 
constitutional  authority,  and  the  Legislature,  with 
the  increased  powers  that  would  almost  necessarily 
attach  to  it  on  the  destruction  of  the  governments 
of  the  separate  States.  From  that  time  one  might 
foresee  that  the  President,  although  a  person  of  lim- 
ited ability,  would  succeed  in  gaining  the  sympathy 
and  influence  of  a  majority  of  the  people.  Doubt- 
less the  latter  might  at  times  declare  in  favor  of  a 
deliberative  assembly,  but  it  would  not  be  safe  to 
depend  on  their  permanent  support.  Called  upon  to 
choose  between  an  abstract  sovereignty  and  the  con- 
crete idea  of  power  centered  in  one  man,  they  would 
in  the  end  almost  always  prefer  the  living  person- 
ality, and  recognize  him  as  the  elect  of  the  nation, 


234  THE  EXECUTIVE  POWER 

without  scaroely  remembering  that  they  had  also 
chosen  their  representatives. 

The  government  of  the  United  States  is  as  vigor- 
ous as  circumstances  may  require.  The  executive 
authority  is  so  constituted  that  it  may  act-  with 
perfect  Hberty  within  its  authorized  Hmits,  and 
these  are  hedged  in  by  barriers  which  cannot  be 
readily  surmounted.  On  one  side  it  is  confronted 
by  the  Legislature  and  by  a  firmly  established  judi- 
cial power,  which  is  almost  always  able  to  expound 
and  enforce  the  rights  of  citizens,  and  on  the  other 
are  these  thirty-seven  independent  bodies,  which 
are  scarcely  amenable  to  its  action.  Thanks  to 
this  combination,  the  presidential  power  is  exerted 
with  vigor,  and  it  proves  equal  to  all  the  require- 
ments of  the  most  varied  situations ;  and  nevertheless 
he  to  whom  it  is  confided  may  be,  from  time  to  time, 
changed,  because  no  man  is  an  indispensable  neces- 
sity. But  let  the  organization  of  the  States  disap- 
pear, and  the  condition  of  things  will  at  once 
become  modified.  This  was  clearly  seen  in  the 
interval  between  the  overthrow  of  the  Confederate 
government  and  the  present  moment.  As  is 
known.  Congress  decided  that  the  inhabitants  of 
the  insurrectionary  States  had  renounced  their 
privileges  and  power  in  the  Union.  ^ 

This  is  not  the  place  to  examine  the  bearing  or 
the  character  of  the  measures  then  adopted,  but  it 

1  Report  of  the  Committee  on  Reconstruction,  p.  11  eL  seq. 


IN  THE  UNITED  STATES.  235 

is  impossible  to  deny  that,  by  reason  of  tbe  de- 
struction of  these  ten  States,  the  federal  authority 
was  largely  extended  beyond  its  constitutional 
limits.  In  fact  an  immense  power  was  assumed  and 
exercised.  If  this  anomalous  state  of  things  had 
been  greatly  prolonged,  and  the  dominant  party  had 
not  labored  to  efface  even  the  last  traces  of  it,  we 
may  be  allowed  to  express  the  opinion,  that  there 
might  have  resulted  a  centralized  republic,  which 
would  with  great  difficulty  have  been  maintained. 
These  eventful  times  also  brought  about  a  conflict 
between  the  President  and  Congress.  "Was  the  power 
to  reconstruct  the  Union  vested  in  him  or  in  them  ? 
Their  respective  partisans  discussed  this  prelimi- 
nary inquiry  with  equal  violence,  and  the;  struggle 
was  renewed,  when  the  question  arose  as  .to  what 
plan  of  reconstruction  should  be  adopted.  At  last 
matters  reached  a  most  critical  point.  The  Presi- 
dent w*as  impeached,  and  narrowly  escaped  convic- 
tion. The  momentary  disorganization  of  ten 
States  was  enough  to  endanger  the  life  of  the 
federal  government.  The  equipoise  and  divi- 
sion of  powers  so  carefully  adjusted  by  the  Consti- 
tution were  deranged,  and  it  seemed  that  they 
would  be  entirely  broken  up.  If  the  friends  of 
freedom  in  America  did  not  despair  of  the  repub- 
lic, it  was  because  of  their  trust  and  belief  that 
the  conflict  would  be  short,  and  that  the  normal 
and  benignant  sway  of  their  institutions  would  be 


236  THE  EXECUTIVE  POWER 

gradually  restored.  Let  us  then  hope  that  the  reg- 
ular action  of  life  will  by  degrees  be  resumed 
and  felt  in  each  of  the  Southern  States.  The 
natural  order  of  things  will  then  be  re-established 
throughout  the  Union;  but  until  this  propitious 
event  occurs,  there  will  be  eccentric  movements  in 
the  working  of  the  federal  government,  and  from 
time  to  time  threatening  attempts  at  centralization. 


CHAPTER  X. 

WHAT  THE  EXECUTIVE  POWER  BECAME   UNDER  MR. 
LINCOLN. 

THE  observations  made  in  the  preceding  chap- 
ters with  regard  to  the  prerogatives  of  the 
executive  would  be  incomplete  without  an 
attempt  to  explain  the  transformation  they  under- 
went during  the  civil  war.  We  must  remark 
their  sudden  expansion,  and  in  what  manner 
those  who  sustained  the  executive  found  means 
to  supply  him  with  all  the  required  resources  to 
resist  the  attacks  which  imperiled  the  existence  of 
the  United  States. 

On  the  -ith  of  March,  1861,  when  Mr.  Lincoln  de- 
livered his  inaugural  address,  it  might  have  seemed 
as  if  the  federal  government  was  destroyed.  Al- 
though the  President  said,  "I  consider  that  the 
Union  is  unbroken,  and  to  the  extent  of  my  ability 
I  shall  take  care,  as  the  Constitution  itself  expressly 
enjoins  upon  me,  that  the  laws  of  the  Union  be 
faithfully  executed  in  all  the  States,"  he,  how- 
ever, added  that  he  would  take  no  steps  that 
would  have  the  effect  to  bring  on  a  war ;  so  he 
(237) 


238  THE  EXECUTIVE  POWER 

confined  himself  to  an  appeal  to  misguided  citizens, 
and  to  a  masterly  argument  to  prove  that  the  Con- 
stitution interdicted  their  going  out  of  the  Union. 
Under  circumstances  of  such  gravity,  never  had 
the  head  of  a  government  expressed  himself  with 
greater  reserve  nor  taken  a  more  modest  attitude. 
He  seemed  to  feel  that  all  the  constitutional  or- 
ganization of  the  United  States  was  on  the  point 
of  dissolution. 

Six  weeks  later  the  secessionists  fired  the  first 
gun  at  Fort  Sumter.  The  President  met  this  pro- 
vocation by  measures  of  defense.  He  immediately 
called  forth  75,000  men  under  arms,  convoked  Con- 
gress, and  declared  the  blockade  of  the  ports  of  the 
South.  War  was  commenced.  In  reality,  in  this, 
the  most  trying  period  in  the  history  of  the 
United  States,  in  deciding  that  the  Union  should 
be  defended  by  force  of  arms,  he  simply  carried 
.into  effect  the  will  of  the  people.  Already,  for 
several  months,  in  the  midst  of  the  confusion  at- 
tending the  last  months  of  Mr.  Buchanan's  admin- 
istration, the  Northern  States  appeared  to  realize 
that  war  was  inevitable,  and  in  many  respects  com- 
menced preparing  for  it.  The  politicians,  alarmed 
at  impending  events,  met  and  tried  to  effect  a  com- 
promise. During  this  time,  when  the  Southern 
States  were  pr.eparing  to  act,  contemporary  docu- 
ments prove  that  the  citizens  of  the  North  were 
learning  .to  handle  arms,  assembling  by  companies 


■    IN  THE  UNITED  STATES.  239 

and  regiments,  and  seeking  in  advance  for  men  to 
lead  them.  This,  so  to  speak,  preliminary  work 
accounts  for  what  took  place  in  the  country  from  the 
moment  that  Mr.  Lincoln  decided  the  question  and 
resolved  to  resist  force  by  force,  and  explains  why 
the  people  of  the  North  showed  themselves  ready  to 
face  the  crisis. 

From  the  beginning  of  hostilities,  and  as  a  logical 
sequence  of  them,  all  the  powers  which  attach  to 
belligerence  inured  to  the  government  and  were  at 
once  called  into  exercise.  A  former  President  of 
the  United  States  once  said  in  the  House  of  Eepre- 
sentatives:  "There  are,  then,  in  the  authority  of 
Congress  and  of  the  executive,  two  classes  of  pow- 
ers, altogether  different  in  their  nature  and  often 
incompatible  with  each  other — the  war  power  and 
the  peace  power.  The  peace  power  is  limited  by 
regulations  and  restricted  by  provisions  prescribed 
within  the  Constitution  itself.  The  war  power  is 
limited  only  by  the  laws  and  usages  of  nations. 
This  power  is  tremendous ;  it  is  strictly  constitu- 
tional, but  it  breaks  down  every  barrier  so  anx- 
iously erected  for  the  protection  of  liberty,  of 
property  and  of  life." 

There  are,  indeed,  adds  the  speaker,  powers  of 
peace  conferred  upon  Congress  which  also  come 
within  the  scope  amd  jurisdiction  of  the  laws  of 
nations,  such  as  the- negotiation  of  treaties  of  amity 
and  commerce,  the  interchange  of  public  ministers 


240  THE  EXECUTIVE  POWER 

and  consuls,  and  all  the  personal  and  social  inter- 
course between  the  individual  inhabitants  of  the 
United  States  and  foreign  nations,  and  the  Indian 
tribes,  which  require  the  interposition  of  any  law. 
But  \}[\Q 'powers  of  war  are  all  regulated  by  the  laws 
of  nations,  and  are  subject  to  no  other  limitation."^ 

Thus,  at  the  breaking  forth  of  hostilites  Mr. 
Lincoln  was  thereby  invested  with  extraordi- 
nary powers ;  and  here  a  constitutional  provision 
will  enable  us  still  better  to  define  his  novel  situa- 
tion. Section  II.  of  article  2  says :  "  The  President 
shall  be  commander-in-chief  of  the  army  and  navy 
of  the  United  States,  and  of  the  militia  of  the  sev- 
eral States  when  called  into  the  actual  service  of 
the  United  States."  However,  these  powers  were 
not  exerted  without  giving  rise  to  violent  discus- 
sions: Even  among  those  who  scarcely  questioned 
Mr.  Lincoln's  right  to  take  all  the  necessary  meas- 
ures for  the  reconstruction  of  the  Union  and  the 
provisional  administration  of  the  conquered  terri- 
tory many  disagreed  with  him  as  to  whether  the 
loyal  States  should  be  subjected  during  the  contin- 
uance of  the  war  to  an  exceptional  regime^  and  as  to 
his  authority  to  suspend  the  privilege  of  the  writ 
of  habeas  corpus^  and  try,  by  military  commissions, 
citizens  accused  of  political  crimes. 

And  on  these  points  the  best  minds  may  read- 
ily differ.      The   Constitution-  had    foreseen   that 

1  Speech  delivered  by  Mr.  John  Quincy  Adams  in  the  House  of 
Representatives,  26th  May,  1836. 


IN  THE  UNITED  STATES.  241 

the  public  necessities  miglit  require  a  suspension 
of  tlie  writ  of  habeas  corpus^  but  does  not  declare 
whether  in  that  event  Congress  alone  has  the  power 
to  authorize  it.  However,  without  regarding  the 
precedents  which  seemed  to  decide  that  the  whole 
matter  was  within  the  exclusive  province  of  that 
body,  the  President,  after  having  consulted  the  At- 
torney-general, took  the  initiative,  and  issued  a 
proclamation  suspending  the  writ  in  certain  States. 
A  serious  contest  then  arose  between  him  and  the 
judiciary,  represented  by  the  Chief  Justice  of  the 
United  States.  The  latter,  in  a  case  pending  before 
him,  decided  that  the  measure  was  illegal,  but  ac- 
knowledged his  inability  to  cause  his  opinion  and 
judgment  to  be  carried  into  effect. 

In  fact,  the  executive  triumphed  over  the  judici- 
ary; but  the  question  regarding  the  power  thus 
exercised  remained  in  abeyance  until  March  3,  1863. 
It  was  only  then  that  Congress  passed  an  act  which 
sanctioned  the  then  existing  state  of  things.  It 
legalized  any  arrest  or  imprisonment  during  the 
rebellion  which  had  been  made  or  committed  under 
the  authority  of  the  President,  and  authorized  him, 
whenever  in  his  judgment  the  public  safe 1 7  might 
require  it,  to  suspend  the  privilege  of  the  writ  in 
any  case  throughout  the  United  States.  .  Reasons 
in  support  of  this  stringent  policy  were  certainly 
not  wanting.     Disloyal  movements  in  several  of  the 

Northern  States  urgently  required  vigilant  super- 
16 


242  THE  EXECUTIVE  POWER 

vision,  and  it  was  vitally  important  to  check  tli-e 
growth  of  conspiracies  and  enforce  the  executian 
of  the  laws. 

Considerations  of  this  character  led  to  the  organi- 
zation of  military  commissions  in  Indiana  and  at 
several  other  points.  However,  it  is  proper  to 
remark  that  when  the  question  of  their  validity 
was  brought  before  the  Supreme  Court,  a  majority  of 
the  judges  held  that  these  extraordinary  tribunals 
had  not  been,  and  could  not  be,  legally  formed  in  a 
State  not  occupied  by  the  insurgents.^  But  this 
judgment  was  not  rendered  until  1866 ;  so  that  if 
it  afforded  instruction  for  the  future,  it  could  have 
no  retroactive  effect. 

As  regards  the  States  in  insurrection,  few  persons 
seriously  contested  the  authority  of  the  President. 
Here  then  the  doctrine  relating  to  the  war  'power 
was  applied  in  its  fullest  extent ;  the  rights  of  the 
conquerors  were  only  limited  by  international  laws 
and  usages.  In  this  way  he  was  able  to  take  de- 
cisive steps  to  abolish  slavery. 

In  his  speech  of  26th  of  May,  1836,  John  Quincy 
Adams  had  already  shown  how  abolition  measures 
could   be   brought  about   by  the  theory  that   he 

explained,  " but  in  time  of  war,"  he  said, 

"there'are  many  ways  by  which  Congress  not  only 
has  the  authority,  but  is  bound  to  interfere  with 
the  institution  of  slavery,  in  the  States " 

1  See  ex  parte  Milligan,  4  Wallace,  Supreme  Court  Reports  106. 
McPherson's  Manual  for  1867,  p.  83  et  seq. 


IN  THE  UNITED  STATES.  243 

And  OR  tlie  14th  and  15tli  of  April,  1842,  he 
again  reverts  to  this  subject :  "I  say  that  military 
authority  takes  for  the  time  the  place  of  all  muni- 
cipal institutions,  and  slavery  among  the  rest,  and 
that,  under  that  state  of  things,  so  far  from  its  being 
true  that  the  States  where  slavery  exists  have  the 
exclusive  management  of  the  subject,  not  only  the 
President  of  the  United  States,  but  the  commander 
of  the  army,  has  power  to  order  the  universal  eman- 
cipation of  the  slaves " 

Such  was  the  doctrine  recognized  and  carried 
into  practical  effect  by  the  memorable  proclamations 
of  September  22,  1862,  and  of  January  1,  1863. 

"  I,  Abraham  Lincoln,  President  of  the  United 
States  of  America,  and  commander-in-chief  of  the 
army  and  navy  thereof,  do  hereby  proclaim   and 

declare That  on  the  first  day  of  January,  in 

the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-three,  all  persons  held  as  slaves  within 
any  State  or  designated  part  of  a  State,  the  people 
whereof  shall  then  be  in  rebellion  against  the  United 
States,  shall  be  then,  thenceforward,  and  forever 
free " 

He  then  promised  to  acknowledge  and  maintain 
the  freedom  of  the  slaves  thus  emancipated.  And 
on  the  first  of  January,  1863,  he  published  a  second 
proclamation,  announcing  that  from  that  date- 
slavery  was  abolished  in.  the  States  and  districts  in 
insurrection. 


244  ^-^-^  EXECUTIVE  POWER 

This  was  a  most  striking  application  of  the 
principles  announced  twenty  years  before  by  John. 
Quincy  Adams.  Congress,  in  the  spring  of  1862, 
had  doubtless  taken  some  action  looking  to  the 
abolition  of  slavery,  but  that  nefarious  institution 
received  the  fatal  blow  from  the  war  power^  which, 
as  some  contend,  the  Constitution  holds  in  reserve 
for  a  national  crisis.  Thus,  in  somewhat  less  than 
eighteen  months  after  the  first  gun  of  the  rebellion 
had  been  fired,  he,  who  March  4:th,  1861,  scarcely 
dared  to  affirm  the  right  of  the  Union  to  take 
measures  of  defense,  was  in  possession  of  almost 
unlimited  authority.^ 

But  the  President  did  not  stop  there  ;  he  deduced 
other  consequences  from  the  doctrine  relative  to 
the  war  power.  Adopting  that  principle  of  inter  - 
n-ational  law  which  authorizes  the  commander-in- 
chief  of  an  army  to  set  up  a  provisional  administra- 
tion in  conquered  districts,  he  concluded  that  it  de- 
volved upon  him  to  reorganize  the  seceded  States. 
In  his  message  of  December  8th,  1863,  he  conimu- 
nicated  to  Congress  a  copy  of  a  proclamation  de- 
signed to  bring  about  the  return  of  the  Southern 
States  into  the  Union,  and  which,  after  excepting 

1  The  reader  who  may  desire  to  understand  how  the  doctrine 
relating  to  the  war  power  was  developed  and  carried  out,  ought  to 
read  the  speech  of  Mr.  Charles  Sumner,  delivered  in  the  Senate, 
May  19,  1862;  it  was  published  in  pamphlet  form,  and  entitled 
"  Rights  of  Sovereignty  and  Rights  of  War" ;  and  we  also  recom- 
mended the  learned  work  of  Mr.  William  Whiting,  called  "  The 
War  Powers  under  the  Constitution  of  the  United  States." 


IN  THE  UNITED  STATES.  245 

from  its  benefits  certain  classes  of  insurgents,  grant- 
ed a  full  pardon  to  every  person  wlio  had  partici- 
pated in  the  rebellion,  with  a  restoration  of  all 
rights  of  property,  except  as  to  slaves,  upon  condi- 
tion that  such  person  should  take  and  thereafter 
keep  inviolate  an  oath  to  support  and  defend  the 
Constitution  of  the  United  States,  and  to  abide  by 
all  the  legislation  of  Congress  and  the  proclama- 
tions of  the  President  having  reference  to  slaves. 

The  proclamation  added  :  "If  a  number  of  per- 
sons, not  less  than  one- tenth  ia  number  of  the  votes 
cast  in  such  State  at  the  presidential  election  of  the 
year  of  our  Lord  one  thousand  eight  hundred  and 

sixty,  each  having  taken  the  oath  aforesaid 

shall  re-establish  a  State  government  which  shall 

be  republican .it  shall  be  recognized."       It 

also  recommended  to  the  States  which  should 
adopt  this  mode  of  organization,  to  take  the  neces- 
sary measures  to  improve  the  condition  of  the 
freed  men. 

Mr.  Lincoln's  message  explained  the  proposition. 
Speaking  of  the  clause  that  related  to  the  freed- 
men,  he  said :  "  But  if  it  be  proper  to  require,  as 
a  test  of  admission  to  the  political  body,  an  oath  of 
allegiance  to  the  Constitution  of  the  United  States, 
and  to  the  Union  under  it,  why  not  also  to  the 
laws  and  proclamations  in  regard  to  slavery? 
Those  laws  and  proclamations  were  enacted  and 
put  forth  for  the  purpose  of  aiding  in  the  suppres- 


246  THE  EXECUTIVE  POWER 

sion  of  the  rebellion.  To  now  abandon  tbem 
would  be  not  only  to  relinquish  a  lever  of  power, 
but  would  also  be  a  cruel  and  an  astounding  breach 
of  faith."  And  this  was  followed  by  the  pointed 
declaration,  "  While  I  remain  in  my  present  position 
I  shall  not  attempt  to  retract  or  modify  the  emanci- 
pation proclamation ;  nor  shall  I  return  to  slavery 
any  person  who  is  free  by  the  terms  of  that  procla- 
mation or  by  any  of  the  acts  of  Congress."  This  is 
not  the  occasion  to  inquire  into  the  intrinsic  merits 
of  his  plan  of  reconstruction.  It  is  important,  how- 
ever, to  remark  that  neither  the  message  nor  accom- 
panying proclamation  evinces  the  least  doubt  of 
his  right  to  exercise  the  vast  power  which  he 
assumed.  Until  then,  his  attempts  at  reconstruc- 
tion had  been  confined  to  the  States  or  parts  of 
States  which,  in  his  capacity  of  commander-in-chief, 
he  administered  provisionally  as  soon  as  they  were 
conquered  and  occupied  by  the  federal  troops. 
Moreover,  at  the  time  when  he  proposed  the  gen- 
eral question  of  reconstruction  and  communicated 
his  own  views  to  Congress,  it  had  not  as  yet  re- 
solved upon  any  definite  policy  in  this  respect ;  bills 
had  been  introduced,  but  not  discussed ;  he  had  not 
then  before  him  any  legislative  action  to  serve  as  a 
guide.  However,  it  is  evident  that  he  believed 
himself  authorized  to  undertake  alone  this  great 
work.  He  held  that  it  belonged,  to  the  executive 
to  proceed  to  the  reorganization  of  the  States,  and 


IN  THE  UNITED  STATES.  247 

that  each  House  of  Congress  ought  to  confine  itself 
to  respectively  examining,  at  the  proper  time,  the 
credentials  of  the  Senators  and  Eepresentati ves  who 
might  be  chosen  by  the  reconstructed  States. 

Nevertheless  Congress  at  once  made  known  to 
Mr.  Lincoln  that  they  did  not  concur  in  his  opin- 
ion on  the  division  of  constitutional  powers.^  The 
House  appointed  a  special  committee,  whose  duty 
it  was  to  examine  the  whole  subject  of  the  re- 
organization of  the  States,  and  to  report  a  bill.  This 
step  was  significant ;  and  the  choice  of  the  chair- 
man was  particularly  so.^ 

The  15th  February  the  committee  proposed  a  bill. 
An  almost  interminable  debate  then  followed,  so 
that  it  was  only  in  the  last  moments  of  the  session 
that  the  two  Houses  agreed  upon  its  provisions. 
It  was  therefore  after  the  adjournment  of  Congress 
that  the  time  accorded  by  the  Constitution  to  the 
President  to  enable  him  to  examine  all  legislative 
measures  presented  to  him,  expired.  He  availed 
himself  of  this  circumstance,  and  did  not  sign  the 
bill.     But  he  went  much  further;  he  addressed  a 

iThe  proclamation  of  the  President  contained  this  significant 
sentence:  "  And  for  the  same  reason  it  may  be  proper  to  further 
say,  that  whether  members  sent  to  Congress  from  any  State  shall 
be  admitted  to  seats  constitutionally,  rests  exclusively  with  the 

respective  Houses  and  not  to  any  extent  with  the  executive " 

See  the  message  and  proclamatiori  in  McPherson's  '♦  History  of  the 
Kebellion,"  p.  140  et  seq, 

2  Mr.  Henry  Winter  IJavis  Was  at  that  time  one  of  the  deter- 
mined opponents  of  Mr.  Lincoln. 


248  IN  THE  UNITED  STATES. 

proclamation  to  the  people  on  this  subject.  After 
having  expressed  his  opinion  on  the  measure,  he 
said  that  he  did  not  renounce  his  own  plan  of  re- 
construction. This  was  a  grave  declaration ;  it 
clearly  denoted  that  he  did  not  limit  himself  to  a 
disapproval  of  any  specific  portion  or  portions  of 
the  bill  passed  by  Congress,  but  that  he  still  claimed 
the  right  to  reorganize  the  conquered  States.  This 
brought  upon  him  a  violent  opposition;  leading 
members  of  Congress  protested,  in  a  public  address, 
against  what  they  called  "a  usurpation  of  power." 
The  President,  said  they,  attaches  no  importance  to 
a  decision  of  Congress  in  the  exercise  of  its  constitu- 
tional rights ;  •  he  should,  nevertheless,  understand 
that  its  authority  is  paramount  and  must  he  re- 
spected} 

This  occurred  in  the  midst  of  the  presidential 
campaign.  The  address  had  the  effect  of  bringing 
his  decision  prominently  before  the  people ;  they 
gave  him  their  emphatic  approval. 

When  Congress  re-assembled  in  the  following  De- 
cember, Mr.  Lincoln  insisted  upon  the  immediate  ad- 
mission of  the  Representatives  and  Senators  chosen 
by  Louisiana.  He  affirmed  that  New  Orleans  and 
the  neighboring  parishes  had  reorganized  a  republi- 
can government  in  accordance  with  his  plan,  and 
that    it   only   remained   for    Congress    to   decide 

I" The  History  of  the  Rebellion,"  by  McPherson,  p.  317  eL  seq.    A 
complete  account  of  this  important  matter  will  be  found  there. 


IN  THE  UNITED  STATES.  249 

whetlier  the  Kepresentatives  of  this  State,  so  re- 
organized, were  entitled  to  their  seats. 

The  question  thus  put  was  debated  during  the 
entire  session  of  Congress.  However,  the  tactics 
of  the  opposition  prevaijed;  they  succeeded  in 
postponing  from  time  to  time  a  final  vote,  and 
reaching  the  4th  of  March  without  any  action. 

Thus,  at  the  very  time  that  the  civil  war  was  on 
the  eve  of  its  termination,  Mr.  Lincoln  energeti- 
cally maintained  his  right  to  dictate  to  the  Southern 
States  the  conditions  of  their  return  to  the  Union ; 
while  the  two  Houses  of  Congress  hesitated,  and 
finally  adjourned  without  coming  to  any  deci- 
sion. The  Confederacy  collapsed  shortly  afterward. 
Some  days  later  he  was  assassinated,  at  the  very 
moment  when  all  resistance  to  the  authority  of  the 
federal  government  had  ceased.  Vice-president 
Johnson  immediately  entered  upon  the  ofiice. 

History  will  never  know  exactly  what,  during 
his  second  term,  would  have  been  Mr.  Lincoln's 
policy  with  regard  to  the  conquered  States.  Would 
he  have  claimed  the  absolute  right  to  solve,  without 
the  aid  or  concurrence  of  Congress,  the  difficulties 
attending  the  re-organization  of  the  South,  or  would 
he,  on  the  contrary,  have  compromised  with  that 
body?  No  one  can  positively  say.  However 
that  may  be,  nearly  two  years  later  the  acknowl- 
edged leader  of  the  .House  of  Eepresentatives  thus 
treated  this   much  controverted  subject :     "  That 


250  THE  EXECUTIVE  POWER       ' 

good  man,"  said  Mr.  Thaddeus  Stevens,  speaking 
of  Mr.  Lincoln,  "  who  never  willingly  infringed 
upon  the  rights  of  any  other  department  of  govern- 
ment, expressl}^  accorded  to  Congress  alone  the 
power  to  declare  *  when  or  whether  members  should 
be  admitted  to  their  seats  in  Congress  from  such 
States.'  It  is  not  to  be  denied  that  his  anxiety  for 
the  admission  of  members  from  Louisiana — or 
rather  from  New  Orleans  and  adjoining  parishes — 
gave  uneasiness  to  the  country.  The  people  had 
begun  to  fear  that  he  was  misled,  and  was  about  to 
fall  into  error.  If  he  would  have  fallen  into  that 
course,  it  is  well  for  his  reputation  that  he  did  not 
live  to  execute  it.  From  being  the  most  popular, 
he  would  have  left  office  the  most  unpopular  man 
that  ever  occupied  the  executive  chair.  But  that 
over-ruling  Providence  that  so  well  guided  him  did 
not  permit  such  a  calamity  to  befall  him.  He 
allowed  him  to  acquire  a  most  enviable  reputation, 
and  then,  before  there  was  a  single  spot  upon  it,  '  he 
sailed  into  the  fiery  sunset.'  Here,  if  there  were 
anything  in  common  but  their  station  [Mr.  Lincoln 
and  Mr.  Johnson],  what  a  temptation  to  draw  a 
parallel.  But  it  would  be  unprofitable  ;  especially 
in  this  debate.  For  what  we  say  at  the  graves  of 
admired  friends,  or  statesmen,  or  heroes,  is  not 
biography.  The  stern  pen  of  history  will  strip 
such  eulogies  of  their  meretricious  ornaments.  But 
there  is  no  danger  that  (he  highest  praise  that  the 


IN  THE  UNITED  STATES.  251 

most  devoted  friends  could  bestow  on  him  would 
ever  be  reversed  bj  posterity.  So  solid  was  the 
material  of  which  his  whole  character  was  formed, 
that  the  more  it  is  rubbed  the  brighter  it  will  shine. 
Mr.  Lincoln  also  was  of  humble  origin  (and  who  is 
not  that  is  formed  of  the  coarse  '  clay  of  humani- 
ty ?')  and  earned  his  living  by  manual  labor.  But 
he  had  too  good  taste  ever  to  boast  of  the  accident 

of  his  birth He  rose  to  the  Chief  Magis- 

tracy.of  the  great  republic  by  his  sterling  patriot- 
ism, sober  habits  and  modest  worth.  He  was  not 
thrown  into  power  by  any  moral  or  political 
convulsion.  His  elevation  was  no  accident,  but 
the  result  of  the  cool  judgment  of  a  nation  of 
freemen.  No  man  ever  assumed  such  vast  respon- 
sibilities under  such  difficult  circumstances,  except, 
perhaps,  "William  the  Silent.  How  similar  in  their 
lives ;   how  alike  in  death  ! 

"  If  there  was  danger,  and  I  admit  there  was  some 
apprehension  that  Mr.  Lincoln  would  be  beguiled 
by  his  chief  adviser  into  a  course  which  would 
have  tarnished  his  well-earned  fame,  that  good 
Guardian  who  had  guided  him  so  well,  preserved 
him  from  that  calamity.  Death  is  terrible.  Death 
in  high  places  is  still  more  lamentable  ;  but  every 
day  is  showing  that  there  are  things  more  terrible 
than  death.  It  was  better  that  his  posthumous 
fame  should  be  unspotted,  than  that  he  should 
endure  a  few  more  years  of  trouble  on  earth.     All 


252  THE  EXECUTIVE  POWER 

must  regret  the  manner  of  his  death ;  yet,  looking 
to  futurity  and  to  his  own  personal  position,  it 
may  be  considered  happy.  From  the  height  of 
his  glory  he  beheld  the  promised  land,  and  was 

withdrawn  from  our  sight Like  the  prophet 

of  the  Lord,  who  knew  not  death,  he  was  wrapt 
from  earth  to  heaven  along  a  track  no  less  lumi- 
nous than  his  who  ascended  in  a  chariot  of  fire 
with  horses  of  fire.  Would  to  God  that  some 
small  portion  of  the  mantle  of  our  Elijah  had 
fallen  on  his  Elisha."  ^ 

It  is  certain,  from  the  most  positive  information, 
that  neither  Mr.  Johnson  nor  the  members  of  Mr. 
Lincoln's  cabinet,  by  whom  he  was  surrounded, 
had  any  doubt  as  to  the  constitutional  power  of 
the  President,  over  the  re-organization  of  the 
Southern  States.  Mr.  Johnson  and  his  advisers 
did  not  then  appear  to  suppose  that  Congress  should 
intervene  in  any  manner.  So  he  decided  not  to 
call  an  extra  session,  and  entered  upon  this  ques- 
tion at  once,  and  with  vigor.  The  preamble  of  his 
proclamation  of  May  29th,  1865,  affirms  his  full 
and  complete  authority  in  the  matter. 

"  Whereas,"  says  this  paper,  "  the  fourth  section 
of  the  fourth  article  of  the  Constitution  of  the 
United  States  declares  that  the  United  States  shall 
guarantee  to  every  State  in  the  Union  a  republican 

1  Speech  delivered  in  the  House  of  Representatives,  March  19th, 
1867,  by  Mr.  Thaddeus  Stevens. 


IN  THE  UNITED  STATES.  253 

form  of  government,  and  shall" protect  each  of 
them  against  invasion  and  domestic  violence ;  and 
whereas,  the  President  of  the  United  States  is,  by 
the  Constitution,  made  commander-in-chief  of  the 
army  and  navy,  as  well  as  chief  civil  executive 
officer  of  the  United  States,  and  is  bound  by  solemn 
oath  to  faithfully  execute  the  office  of  President  of 
the  United  States,  and  to  take  care  that  the  laws 
be  faithfully  executed  ;  and  whereas,  the  rebellion 

deprived  the  people  of  the  State  of  North 

Carolina  of  all  civil  government ;  and  whereas,  it 
becomes  necessary  and  proper  to  carry  out  and  en- 
force the  obligations  of  the  United  States  to  the 
people  of  North  Carolina,  in  securing  them  in  the 
enjoyment  of  a  republican  form  of  government." 
The  President  consequently  appointed  a  provi- 
sional Governor,  and  charged  him  to  proceed  to 
re-organize  the  State  conformably  to  the  plan  traced 
in  that  paper.  The  same  system  of  reconstruction 
was  at  once  applied  to  the  other  States.  Thus  the 
Executive  Power  actually  undertook  to  make  a 
definite  disposition  of  the  fate  of  ten  States  of  the 
Union. 

If  the  President  had  accepted  the  ideas  and  adopt- 
ed the  policy  of  the  party  to  whom  he  owed  his 
position,  it  is,  to  say  the  least,  doubtful  whether 
Congress  would  ever  have  raised  the  question  as  to 
his  constitutional  power  in  the  premises.  How- 
ever, he  evidently  wished  to  please  the  Democrats ; 


254  THE  EXECUTIVE  POWER 

not  only  therefore  did  he  arrogate  such  power,  but 
some  of  the  leading  features  of  his  plan  were  in  .con- 
flict with  the  cherished  principles  of  the  Eepublican 
party. 

It  was  then  chiefly  the  politics  of  Mr.  Johnson 
that  provoked  the  resistance  of  Congress  and  led 
them  to  assert  their  exclusive  right  to  decide  upon 
measures  of  reconstruction.  In  the  month  of  De- 
cember, 1865,  the  reaction  commenced ;  the  two 
Houses  were  scarcely  assembled  when  they  adopted 
a  resolution,  which,  without  expressly  contesting 
his  jurisdiction,  nevertheless  directed  a  special 
committee  to  inquire  "Upon  the  condi^on  of 
the  States  that  composed  the  so-called  Confederate 
States  of  America,  and  to  make  a  report  upon  the 
question  as  to  their  right  to  be  represented  in  the 
two  Houses."  Thus  Congress  was  still  upon  the 
defensive ;  it  did  not  declare  that  he  had  usurped 
an  authority  which  exclusively  belonged  to  it.  Sev- 
eral months  later  the  committee  on  reconstruction 
went  further,  and  affirmed  in  its  report  that  he  had 
exceeded  the  limit  of  his  powers.  This  memor- 
able paper,  drawn  up  by  a  Senator  whose  recent 
death  has  left  a  wide  void  in  the  upper  House, 
maintained  that  at  the  time  the  rebellion  ceased 
the  inhabitants  of  the  rebel  States  were  destitute 
of  all  civil  government.  In  such  a  situation  it  was 
the  duty  of  the  President  to  cause  to  be  executed  all 
the  national  laws  in  those  States,  and  to  organize,  as 


IN  THE  UNITED  STATES.  255 

far  as  possible,  a  provisional  administration  adapted 
to  their  condition.  As  commander-in-cliief  of  a 
victorious  army,  and  without  departing  from  the 
principles  of  international  law,  he  ought  to  restore 
order,  defend  property,  and  protect  the  people 
against  all  violence,  foreign  or  domestic ;  besides, 
he  was  at  liberty  either  to  convene  Congress  or  to 
maintain  the  existing  condition  of  things  until  the 
annual  meeting  of  that  body. 

The  President,  in  prescribing  a  mode  for  the  or- 
ganization of  North  Carolina,  and  afterward  of  the 
remaining  Southern  States,  palpably  transcended 
his  prerogatives.  He  could  not  interpose  as  to  the 
system  of  government  that  the  citizens  of  these 
States  might  adopt ;  for  according  to  the  Constitu- 
tion of  the  United  States  this  power  belonged  ex- 
clusively to  Congress,  so  that  his  plans  of  recon- 
struction could  only  be  considered  as  provisional.* 

Congress  entirely  accepted  the  conclusions  of 
this  report.  In  this  situation  the  President  was 
obliged  to  appeal  to  the  people  to  settle  the  ques- 
tion pending  between  the  legislative  branch  of 
the  government  and  himself.  Under  the  influence 
of  very  diverse  causes  they  arrayed  themselves  on 
the  side  of  Congress.  The  electoral  campaign  of 
1866  presents  in  this  respect  a  nqtj  peculiar  char- 
acter.    In  the  history  of  the  dissensions  between 

1  Report  of  the  Joint  Committee  on  Reconstruction,  p.  8  et.  seq. 
It  was  drawn  up  by  Senator  W.  P.  Fessenden. 


256  THE  EXECUTIVE  POWER 

the  executive  and  the  Houses,  these  elections  fur- 
nish the  instances  in  which  the  people  have  to  the 
greatest  extent  decided  in  favor  of  the  legislative 
power.  Nevertheless  we  must  not  consider  their 
decision  as  a  proof  that  their  opinion  had  under- 
gone .an  entire  change,  and  that  henceforth  they 
would  withdraw  their  special  confidence  from  the 
Executive  Power.  Mr.  Johnson  had  personally 
compromised  the  position  of  President  of  the  United 
States,  and  the  popular  distrust  of  him  was  the 
real  and  only  cause  of  this  momentary  success  of 
Congress.  Thenceforward  that  body,  by  its  enact- 
ments following  each  other  in  rapid  succession, 
divested  him  of  the  privileges  and  prerogatives 
which  his  predecessor  had  exercised.  The  reaction 
went  so  far,  that  before  his  impeachment  he  found 
himself  almost  ppwerless,  notwithstanding  some  of 
th^se  prerogatives  were  conferred  on  the  executive 
in  express  terms  by  the  Constitution. 

Thus,  within  a  period  of  four  years,  a  vigorous 
executive,  wielding  formidable  powers,  came  forth 
from  the  confusion  and  anarchy  into  which  the 
country  h^d  been  thrown  in  the  beginning  of  1861. 
Under  the  control  of  unprecedented  circumstances 
these  powers,  step  by  step,  attained  such  propor- 
tions that  President  Lincoln,  with  a  stroke  of  the 
pen,  broke  the  fetters  of  4,000,000  slaves.  Nothing 
could  then  longer  resist  his  will;,  he  commands 
hundreds  of  thousands  of  soldiers,,  and  a  constantly 


IN  THE  UNITED  STATES.  257 

increasing  navy ;  he  holds  in  his  hands  a  complete 
system  of  recruiting,  and  the  people  pour  without 
stint  their  money  into  the  federal  treasury.  The 
war  continues ;  the  Confederacy  begins  to  give  way 
in  the  struggle.  States  one  after  another  are 
snatched  from  its  grasp,  and  then  he  alone  under- 
takes to  govern  and  organize  them.  Soon  after,  the 
entire  building  put  up  by  the  insurgents  totters 
and  falls  to  pieces,  and  one-third  of  the  Union  is 
subject  to  his  sole  control.  But  power  changes 
hands.  His  successor  is  unequal  to  the  task  before 
him.  A  reaction  then  speedily  begins.  At  this 
moment  both  Houses  of  Congress  enter  on  the 
stage ;  little  by  little  they  strip  him,  not  only  of 
all  the  extraordinary  powers  received  from  his  pre- 
decessor, but  proceed  so  far  that  Andrew  Johnson, 
President  of  the  United  States,  is  finally  impeached 
by  the  House  and  tried  by  the  Senate. 
17     , 


CHAPTER  XI. 

IMPEACHMENT     AND      ACQUITTAL      OF      PKESIDENT 
JOHNSON. 

THE  7th  January,  1867,  the  House  of  Repre- 
sentatives of  the  39th  Congress  adopted  a 
resolution  instructing  the  Judiciary  Commit- 
tee to  proceed  to  inquire  into  the  political  conduct 
of  the  President  of  the  United  States.  The  7th 
of  March  following,  the  House  of  Representatives 
of  the  40th  Congress  again  passed  this  same  reso- 
lution, so  that  the  investigation  was  continued  with- 
out interruption,  notwithstanding  the  renewal  of 
the  House. 

The  Judiciary  Committee  heard  a  considerable 
number  of  witnesses,  and  collected  an  enormous 
mass  of  written  testimony,  and  finally,  the  succeed- 
ing 25th  November,  made  three  reports  to  the 
House.  The  first,  signed  by  five  Republicans, 
recommended  the  impeachment  of  President,  John- 
son ;  the  second,  signed  by  two  Republicans,  pro- 
nounced against  the  measure,  while  the  third  was 
intended  to  make  known  to  the  House  and  the 
country  the  protest  of  two  Democrats,  members 
(258) 


IN  THE  UNITED  STATES.  259 

of  the  coinmittee.  The  first  two  reports  merit 
special  attention.  The  majority  report  contained 
seventeen  articles  of  impeachment,  all,  in  their 
opinion,  proved  by  the  testimony  before  them, 
and  incriminating  the  whole  political  conduct  of 
Mr.  Johnson.  The  majority  reproached  him  with 
grave  excesses  of  power,  and  believed  themselves 
capable  of  establishing  his  repeated  violation  of 
several  laws.  It  remained  to  be  shown  that  these 
imputed  malfeasances  constituted  an  impeachable 
offense.  And  at  this  point  the  first  question  to 
determine  was  the  nature  and  extent  of  the  crimi- 
nal proceeding  known  under  the  name  of  impeach- 
ment. 

The  report  of  the  two  dissenting  Republicans 
said  that  the  Constitution  of  the  United  States  de- 
clares that  "  the  House  of  Representatives  shall 
have  the  sole  power  of  impeachment^''  "What  is, 
then,  the  character  and  scope  of  this  power  ?  May 
it  be  legally  exercised  at  any  time  that  the  majority 
of  the  House  sees  fit  to  get  rid  of  an  obnoxious 
functionary?  Happily,  observes  the  report, 'this  is 
not  the  case.  According  to  the  Constitution,  • '  The 
President,  Vice-president,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on 
impeachment  for  and  conviction  of  treason,  bribery, 
or  other  high  crimes  and  misdemeanors."^  The 
words  treason   and  bribery  are  easy  to  interpret. 

1  Constitution,  Article  II.  Section  4. 


26o  THE  EXECUTIVE  POWER 

They  describe  acts  which  may  be  the  subject-mat- 
ter of  an  indictment  before  the  ordyiary  criminal 
tribunals.  The  law  defines  them  and  determines 
the  punishment  which  may  be  inflicted  on  the  con- 
victed party.  But  what  is  the  meaning  of  the  ex- 
pression, "other  high  crimes  and  misdemeanors," 
employed  in  the  same  connection  ?  Do  they  au- 
thorize the  House  to  impeach  a  functionary  in  case 
that  his  alleged  ofifense  would  not  render  him  amena- 
ble to  the  courts  of  criminal  jurisdiction? 

In  inserting  the  words  "  treason  and  bribery," 
the  framers  of  the  Constitution  manifested  their 
intention  to  limit  the  cases  in  which  the  House 
could  exert  its  power  of  impeachment.  Thus  the 
article  referred  to  has  in  view  only  criminal  acts, 
in  the  ordinary  sense  of  the  penal  law.  And  the 
proof  that  this  interpretation  should  be  given  to 
the  Constitution  is  found  in  the  concluding  words, 
"the  party  convicted  shall  nevertheless  be  liable 
and  subject  to  indictment,  trial,  judgment  and  pun- 
ishment according  to  law."  Thus  the  trial  by  im- 
peachment may  terminate  by  a  judgment  removing 
from  office  and  disqualifying  the  party  convicted, 
but,  after  such  judgment,  he  is  also  liable  to  crimi- 
nal prosecution  in  the  courts;  so  that  the 'House 
caniiot  proceed  by  way  of  impeachment  unless  the 
ajccused  functionary  is  charged  with  a  crime  or 
misdemeanor  which  subjects  him  to  such  prosecu- 
tion.    This  same  report  then  took  up  another  line 


IN  THE  UNITED  STATES.  261 

of  argument,  and  contended  in  substance  that  an 
impeachment  could  not  be  rightfully  ordered,  un- 
less the  alleged  act  had  been  made  the  subject  of 
legislation  by  the  United  States.  Thus  the  indis- 
pensable conditions  to  the  impeachment  of  a  func- 
tionary by  the  House  are 

1st.  That  the  act  charged  should  be  of  a  nature 
to  give  rise  to  ulterior  criminal  proceedings,  under 
the  jurisdiction  of  the  courts. 

2d.  That  the  crime  or  misdemeanor  is  punish- 
able by  a  law  of  the  United  States. 

This  last  point  is  of  great  importance,  for  in 
a  country  governed  in  part  by  the  English  common 
law,  and  in  part  by  laws  enacted  by  the  several 
States,  an  offense,  provided  for  only  by  the  common 
law  or  a  State  statute,  would  not  authorize  an  im- 
peachment. Federal  legislation  must  define  the 
crime  or  misdemeanor  and  prescribe  the  punish- 
ment. According  to  this  doctrine,  a  functionary 
might  be  guilty  of  an  offense  punishable  at  common 
law,  but  not  by  act  of  Congress  ;  but  in  such  a  case 
the  House  could' not  impeach  him. 

These  views  on  the  clauses  of  the  Constitution 
applicable  to  impeachment  were,  doubtless,  not 
accepted  by  a  majority  of  the  committee ;  but  the 
House  understood  that  the  minority  had  received 
them  from  an  eminent  jurist;  and  it  was,  more- 
over, not  greatly  inclined  to  push  matters  to  an 
extremity.     So,  after  a  somewhat  brief  debate,  108 


262  THE  EXECUTIVE  POWER 

votes  were  cast  against,  and  57  in  favor  of  the 
impeachment.^ 

It  thus  appears  that  the  House  was  unwilling  to 
initiate  an  impeachment  solely  upon  political 
grounds.  The  majority  thought  that  the  people, 
as  the  only  judge  competent  to  determine  such 
questions,  would,  at  the  following  election,  decide 
between  the  Eepublican  policy  of  Congress  and 
Mr.  Johnson's  Democratic  tendencies.  However, 
he  was  soon  to  change  the  views  of  the  House  on 
the  subject. 

As  has .  already  been  seen.  Congress,  the  2d 
March,  1867,  passed,  over  the  presidential  veto,  a 
law  regulating  the  tenure  of  civil  offices.  Section 
1st  said :  "  That  every  person  holding  any  civil 
office  to  which  he  has  been  appointed  by  and  with 
the  advice  and  consent  of  the  Senate,  or  who  shall 
be  hereafter  appointed  to  any  such  office,  and  shall 
become  duly  qualified  to  act  therein,  is  and  shall 
be  entitled  to  hold  such  office  until  his  successor 
shall  have  been  in  like  manner  appointed  and  duly 
qualified."  This  provision  signified  that  any  func- 
tionary nominated  by  the  President  and  confirmed 
by  the  Senate  could  not  be  removed,  except  in 
case  the  Senate  should  authorize  the  change  by 
confirming  the  nomination  of  a  successor.  The 
same  section  contained  a  special  clause  relating  to 

1  Impeachment  of  the  President.  House  of  Representatives, 
40th  Congress,  Ist  session,  Rep.  Com,  No.  7.  See  also  MePherson's 
Political  Manual  for  1868,  p.  264  el  seq. 


IN  THE  UNITED  STATES.  263 

members  of  the  Cabinet.  These  latter  were  to  hold 
their  offices  respectively  for  and  during  the  term 
of  the  President  by  whom  they  might  have  been 
appointed,  and  they  were  only  subject  to  removal 
by  and  with  the  advice  and  consent  of  the  Senate. 

The  second  section  embraced  the  cases  where, 
during  the  recess  of  the  Senate,  an  officer  should 
be  shown,  by  evidence  satisfactory  to  the  President, 
guilty  of  misconduct  in  office,  or  crime,  or  should 
become  incapable  or  legally  disqualified  to  dis- 
charge its  duties.  The  President  could  then  suspend 
him  and  designate  a  person  to  perform,  tempora- 
rily, his  duties,  but  should  report  to  the  Senate, 
within  twenty  days  after  the  first  day  of  the  next 
session,  such  suspension,  with  the  reasons  therefor. 
The  Senate  would  proceed  to  examine  them,  and 
if  it  decided  that  they  were  not  well  founded,  the 
suspended  officer  was  to  be  reinstated  in  his  func- 
tions. 

At  the  time  that  the  law  was  debated  and  passed, 
the  Eepublican  party  scarcely  concealed  their  inten- 
tion of  retaining  in  the  War  Department  Mr.  Stan- 
ton, who  possessed  and  deserved  their  entire  confi- 
dence. 

In  the  course  of  the  summer  of  1867,  Congress 
not  being  in  session,  the  President  availed  himself 
of  the  occasion  to  ask  for  the  resignation  of  Mr. 
Stanton,  who  answered  by  a  refusal.  Mr.  Johnson 
then  suspended  him,  and  confided  the  temporary 


264  THE  EXECUTIVE  POWER 

administration  of  the  War  Department  to  General 
Grant.  Things  remained  in  this  condition  until  the 
Senate  met  again  in  December,  1867.  Mr.  Johnson 
then  hastened  to  send  a  message  to  that  body,  setting 
forth  the  reasons  that  had  decided  him  to  suspend  Mr. 
Stanton.  The  13th  January,  1868,  the  Senate  de- 
clared that  it  did  not  approve  them.  Consequently, 
by  the  terms  of  the  law,  Mr.  Stanton  was  to  be 
reinstated  in  office.  Mr.  Johnson  appeared  at  first 
to  yield,  and  accept  the  situation ;  but  about  a 
month  later  (the  21st  February)  he  addressed  the 
following  letter  to  the  Secretary  of  War : 

"  Sir  :  By  virtue  of  the  power  and  authority  vested  in  me, 
as  President,  by  the  Constitution  and  laws  of  the  United 
States,  you  are  hereby  removed  from  office  as  Secretary  for 
the  Department  of  War,  and  your  functions  as  such  will  ter- 
minate upon  the  receipt  of  this  communication. 

"You  will  transfer  to  Brevet  Major-General  Lorenzo 
Thomas,  Adjutant-general  of  the  army,  who  has  this  day  been 
authorized  and  empowered  to  act  as  Secretary  of  War  ad 
interim,  all  records,  *!Ooks,  papers  and  other  property 
belonging  to  the  government,  and  now  in  your  custody  and 
charge." 

As  soon  as  Mr.  Stanton  received  this  letter  he 
transmitted  it  to  the  House  of  Eepresentatives. 
That  body  referred  it  immediately  to  the  committee 
on  reconstruction.  The  selection  of  this  com- 
mittee foreshadowed  coming  events ;  it  was  almost 
entirely  composed  of  determined  adversaries  of  the 
President,  and  Mr.  Thaddeus  Stevens,  one  of  the 
leaders  of  the  Republican  party,  was  its  chairman. 


IN  THE  UNITED  STATES.  26.^ 

The  House  was  not  kept  long  in  suspense  by 
this  committee.  The  ninth  section  of  the  tenure 
of  office  act  declared  that  every  violation  of  its 
provisions  should  be  considered  a  misdemeanor, 
and  it  prescribed  the  penalty  of  the  party  guilty 
thereof.  The  opponents  of  Mr.  Johnson  thought 
that  they  had  found  all  the  conditions  required 
by  the  most  scrupulous  legists  for  the  impeach- 
ment of  a  functionary.  The  day  after  the  letter 
was  referred  to  the  committee,  Mr.  Stevens,  on  their 
behalf,  submitted  a  report,  accompanied  by  the  fol- 
lowing resolution  :  "  That  Andrew  Johnson,  Presi- 
dent of  the  United  States,  be  impeached  of  high 
crimes  and  misdemeanors  in  office."  Three  days 
threafter  the  House  adopted  this  resolution  by  a 
vote  of  126  to  47,  and  immediately  appointed  a  com- 
mittee to  prepare  and  report  articles  of  impeach- 
ment. It  thus  acted  because,  in  its  opinion,  the 
President  had  willfully  violated  an  act  of  Congress 
containing  a  penal  provision. 

However,  when  the  lawyers  composing  a  portion 
of  the  committee  examined  the  question  calmly, 
they  pel-ceived  how  difficult  of  execution  was  the 
work  that  they  had  undertaken.  So  Mr.  Thaddeus 
Stevens,  the  most  discerning  and  skillful  amongst 
them,  suggested  the  addition  of  two  articles,  with 
a  view  of  bringing  the  charges,  as  far  as  possi- 
ble, within  the  limits  of  a  political  question.  As 
the  House  had  already  voted  for  the  impeachment, 


266  THE  EXECUTIVE  POWER 

it  readily  consented  to  accept  articles  whicli  it  had 
rejected  nearly  two  months  -before.  It  then  ap- 
pointed managers  to  present  and  defend  the  articles 
of  impeachment  at  the  bar  of  the  Senate. 

In  the  meantime  the  Senate  had  formed  itself 
into  a  high  court  of  justice.  Conformably  to  the 
Constitution,  the  Chief  Justice  of  the  Supreme 
Court  presided. 

Mr.  Johnson  called  upon  some  of  the  most  emi- 
nent jurisconsults  of  the  Union,  and  they  undertook 
his  defense. 

The  United  States  then  presented  an  unexampled 
spectacle  in  the  history  of  the  world :  that  of  a 
President  continuing  the  administration  of  affairs, 
whilst  a  high  court  of  justice  deliberated  on  his 
fate.  Those  who  ordered  his  impeachment,  did  not 
dare  to  suspend  him  from  the  exercise  of  his  func- 
tions during  the  trial.  And  how  was  the  court  con- 
stituted ?  Did  it  not  consist  of  the  same  Senators 
who  had  decided,  by  a  majority  of  35  to  6,  that 
Mr,  Stanton  ought  to  resume  his  functions,  and  who 
again  still  more  recently  had  given  votes  quite  as 
significant?  So  that  the  proceedings  opened  under 
influences  the  most  unfavorable  to  the  accused. 

However,  the  benignant  spirit  of  the  Anglo- 
Saxon  criminal  procedure,  when  conducted  even 
under  the  most  adverse  circumstances,  was  soon 
felt  and  recognized.  Above  all  declarations  of  the 
rights  of  man   and  of  the  citizen,   it   guarantees 


IN  THE  UNITED  STATES.  267 

individual  liberty ;  it  does  not  permit  the  prosecu- 
tor to  exhume  the  entire  past  of  the  accused;  it 
excludes  hearsay  evidence ;  it  confines  the  proofs 
to  the  specific  charge  ;  it  orders,  that  the  witnesses 
shall  be  heard  in  person,  and  undergo  the  ordeal  of 
a  ,  cross-examination  conducted  pursuant  to  rales 
well  fitted  to  elicit  the  truth ;  it  compels  the  attend- 
ance of  witnesses  for  the  defense,  and,  by  the  most 
solemn  sanctions  enjoins  upon  the  judges  absolute 
impartiality.  Finally,  it  forbids  the  barbarous  prac- 
tice of  interrogating  the  accused,  which  prevails  in 
countries  where  justice  is  not  administered  accord- 
ing to  the  forms  of  the  English  common  law.  Under 
such  circumstances,  there  is  an  equal  contest  be- 
tween him  and  his  accusers. 

Thanks  to  the  power  of  that  spirit  which  ani- 
mates the  Anglo-Saxon  race,  the  Senate  of  the 
United  States,  however  hostile  to  Mr.  Johnson,  was 
governed  by  these  beneficent  rules  of  procedure, 
which  alone  are  suited  to  a  free  people. 

It  is  impossible  to  sum  up  in  a  few  pages  the 
memorable  discussions  that  commenced  the  23d 
March,  1868,  and  terminated  the  following  31st  of 
May,  by  the  complete  acquittal  of  Mr.  Johnson  ;  the 
special  study  they  deserve  would  far  exceed  the 
space  at  our  command.  It  will  then  saffice  to  show 
on  what  ground  this  august  tribunal  decided  that  it 
could  not  depose  him  for  political  reasons. 

Among  the  arguments  urged  in  behalf  of  the 


268  THE  EXECUTIVE  POWER 

House,  that  of  Mr.  Thaddeus  Stevens  particularly 
claims  attention.  Although  in  his  declining  years, 
and  so.  physically  exhausted  that  he  could  scarcely 
take  part  in  the  trial,  he  submitted  a  paper  present- 
ing his  views  with  perfect  clearness  and  precision. 
Appreciating  the  difficulty  of  proving  beyond  a 
reasonable  doubt  that  the  President  had  been  guilty 
of  a  misdemeanor  in  the  dismissal  of  Mr.  Stanton, 
the  manager  on  the  part  of  the  House  reasoned  as 
follows  :  "  When  Andrew  Johnson  took  upon  him- 
self the  duties  of  his  high  office,  he  swore  to  obey 
the  Constitution  and  take  care  that  the  laws  be 
faithfully  executed.  That,  indeed,  is  and  has  always 
been  the  chief  duty  of  the  President  of  the  United 

States to  obey  the  commands  of  the  sovereign 

power  of  the  nation  and  to  see  that  others  should 

obey  them a  duty  which  he  could  not  escape, 

and  any  attempt  to  do  so  would  be  in  direct  viola- 
tion of  his  official  oath ;  in  other  words,  a  misprision 
of  perjury.  I  accuse  him,  in  the  name  of  the  House 
of  Kepresentatives,  of  having  perpetrated  that 
foul  offense  against  the  laws  and  interests  of  his 
country." 

Mr.  Stevens  also  accused  the  President  of  having 
willfully  usurped  the  legislative  power  of  the  nation 
in  his  attempted  reorganization  of  the  Southern 
States,  and  of  having  advised  them  not  to  submit  to 
the  action  of  Congress.  This  guilty  animus  was 
manifest  in  all  his  official  acts.   So  the  Senate  should 


IN  THE  UNITED  STATES.  269 

find  in  them  proof  of  criminal  intention  in  the  re- 
moval of  Mr.  Stanton.^  He  then  asked  for  the  con- 
viction of  the  President,  not  merely  because  he 
had  committed  a  specified  misdemeanor,  but  chiefly 
because  he  had  resisted  the  policy  of  Congress. 

But  the  advocates  for  the  defendant  insisted 
that  the  Senate  was  then  organized  as  a  distinct 
body  from  the  Senate  acting  in  its  legislative  or 
executive  capacity,  and  was  sitting  as  a  court-  bound 
by  the  rules  governing  criminal  prosecutions  and 
securing  the  rights  of  the  accused.  The  question 
at  issue  was  not  whether  the  President  had  opposed 
the  policy  of  Congress,  and  sought  to  secure  the 
prevalence  of  his  own  views  in  conflict  with  it,  but 
whether  he  had  committed  a  crime  subjecting  him 
to  a  subsequent  prosecution  in  a  court  of  the 
United  States.  Party  considerations  should  be  dis- 
carded, and  the  Senate  must  confine  itself  to  the 
judicial  determination  of  the  matters  involved. 

Assuming  these  positions,  which  they  led  the 
Senate  by  degrees  to  accept,  the  counsel  of  Mr. 
Johnson  were  able  to  resist  successfully  the  attacks 
of  the  managers  on  the  part  of  the  House  against 
the  President.  At  the  same  time  public  passions 
were  allaying,  and  opinions,  formed  under  the  in- 
fluence of  violent  excitement,  gave  way  to  a  sober 
second  thought,  which  commenced  considering  the 
question  on  its  intrinsic  merits.     Finally  the  court 

1  Proceedings  in  the  trial  of  Andrew  Johnson,  p.  665  et.  seq. 


270 


THE  EXECUTIVE  POWER 


retired  to  deliberate.  During  this  solemn  session 
it  examined,  in  its  turn,  the  doctrine  of  the  politi- 
cal deposition  of  the  President. 

Mr.  Sumner  gave  his  unqualified  assent  to  the 
principles  laid  down  by  Mr.  Stevens.  According 
to  him,  the  impeachment  constituted  a  political, 
and  not  a  judicial,  procedure.  The  Senate  was  not 
a  high  court  of  justice,  but  it  judged  as  a  Senate. 
He  therefore  concluded  that  political  offenses  might 
authorize  the  impeachment  and  conviction  of  the 
party  who  had  committed  them.  He  then  retraced 
the  entire  public  course  of  Mr.  Johnson  since  his 
accession  to  office,  and  expressed  the  opinion  that 
it  was  such  as  to  justify  his  removal.  From  this 
stand-point,  the  pending  proceedings  furnished,  so 
to  speak,  only  an  occasion  for  pronouncing  his  con- 
viction. 

He  said,  in  conclusion  :  "  In  the  judgment  which 
I  now  deliver  I  cannot  hesitate.  To  my  vision 
the  path  is  clear  as  day.  Never  in  history  was 
there  a  great  case  more  free  from  all  just  doubt. 
If  Andrew  Johnson  is  not  guilty,  then  never  was  a 
political  offender  guilty  before ;  and  if  his  acquit- 
tal is  taken  as  a  precedent,  never  can  a  political 
offender  be  found  guilty  again.  The  proofs  are 
mountainous.  Therefore  you  are  now  determining 
whether  impeachment  shall  continue  a  beneficent 
remedy  in  the  Constitution,  or  be  blotted  out  for- 
ever, and  the  country  handed  over  to  the  terrible 


IN  THE  UNITED  STATES.  271 

process  of  revolution  as  its  sole  protection.  If 
this  milder  process  cannot  be  made  effective  now, 
when  will  it  ever  be  ?  Under  wbat  influences  ? 
On  what  proofs  ?  You  wait  for  something.  What? 
Is  it  usurpation  ?  You  have  it  before  you,  open, 
plain,  insolent.  Is  it  the  abuse  of  delegated  pow- 
er ?  That,  too,  you  have  in  this  offender,  hardly 
less  broad  than  the  powers  he  has  exercised.  Is  it 
the  violation  of  the  law?  For  more  than  two 
years  he  has  set  your  laws  at  defiance,  and  when 
Congress,  by  a  special  enactment,  strove  to  restrain 
him,  he  broke  forth  in  rebellion  against  this  con- 
stitutional authority.  Perhaps  you  ask  still  for 
something  more.  Is  it  a  long  catalogue  of  crimes, 
where  violence  and  corruption  alternate^  while  loyal 
men  are  sacrificed  and  the  rebellion  is  lifted  to  its 
feet  ?  That  also  is  here.  The  apologists,"  added 
the  speaker,  "  are  prone  to  remind  the  Senate  that 
they  are  acting  under  the  obligation  of  an  oath. 
So  are  the  rest  of  us,  even  if  we  do  not  ostenta- 
tiously declare  it.  By  this  oath,  which  is  the  same 
for  us  all,  we  are  sworn  to  do  '  impartial  justice.' 

Therefore  I  cannot  allow  the   quibbles  of 

lawyers  on  mere  questions  of  form  to  sway  this 
judgment  against  justice.  Nor  can  I  consent  to 
shut  out  from  view  that  long  list  of  transgressions 
explaining  and  coloring  the  final  act  of  defiance. 

Something  also  has  been  said  of  the  people 

now  watching  our  proceedings  with  patriotic  solici- 


272  THE  EXECUTIVE  POWER 

tude,  and  it  has  been  proclaimed  that  they  are 
wrong  to  intrude  their  judgment.  I  do  not  think 
so.  This  is  a  pohtical  proceeding  which  the  people 
at  this  moment  are  as  competent  to  decide  as  the 
Senate."  ^ 

But  this  opinion,  expressed  with  such  force  and 
eloquence,  was  resisted  by  another  entirely  at  vari- 
ance with  it.  ''•  The  power  of  impeachment,"  argued 
one  of  the  most  distinguished  lawyers  in  the  Senate. 
"  is  conferred  by  the  Constitution  in  terms  so 
general  as  to  occasion  great  diversity  of  opinion 
with  regard  to  the  nature  of  offenses  w^hich  may 
be  held  to  constitute  crimes  or  misdemeanors 
within  its  intent  and  meaning.  Some  contend,  and 
with  great  force  of  argument,  both  upon  principle 
and  authority,  that  only  such  crimes  or  misde- 
meanors are  intended  as  are  subject  to  indictment 
and  punishment  as  a  violation  of  some  known  law. 
Others  contend  that  anything  is  a  crime  or  misde- 
meanor, within  the  meaning  of  the  Constitution, 
which  the  appointed  judges  choose  to  consider  so ; 
and  they  argue  that  the  provision  was  left  indefi- 
nite from  the  necessity  of  the  case,  as  offenses  of 
public  officers,  injurious  to  the  public  interest,  and 
for  which  the  offender  ought  to  be  removed,  cannot 
be  accurately  defined  beforehand ;  that  the  remedy 
provided  is  of  a  political  character,  and  designed 
for  the  protection  of  the  public  against  unfaithful 

1  Trial  of  Andrew  Johnson,  p.  958  el  seq. 


IN  THE  UNITED  STATES.  273 

and  corrupt  officials.  Granting,  for  the  sake  of  the 
argument,  that  this  latter  construction  is  the  true 
one,  it  must  be  conceded  that  the  power  thus  con- 
ferred might  be  liable  to  very  great  abuse,  especi- 
ally in  time  of  great  part}^  excitement,  when  the 
passions  of  the  people  are  inflamed  against  a  per- 
verse and  obnoxious  public  officer.  If  so,  it  is  a 
power  to  be  exercised  with  extreme  caution  when 
you  once  get  beyond  the  line  of  specific  criminal 
offenses.  The  tenure  of  public  offices,  except  those 
of  judges,  is  so  limited  in  this  country,  and  the 
ability  to  change  them  by  popular  suffrage  so 
great,  that  it  would  seem  scarcely  worth  while  to 
resort  to  so  harsh  a  remedy,  except  in  extreme 
cases,  and  then  upon  clear  and  unquestionable 
grounds. 

"  In  the  case  of  an  elective  chief  magistrate 
of  a  great  and  powerful  people,  living  under  a 
written  constitution,  there  is  much  more  at  stake 
in  such  a  proceeding  than  the  fate  of  the  individual. 
The  office  of  President  is  one  of  the  great  co-ordi- 
nate branches  of  the  governnaent,  having  its  defined 
powers,  branches  and  duties,  as  essential  to  the  very 
framework  of  the  government  as  any  other,  and  to 
be  touched  with  as  careful  a  hand.  Anything 
which  conduces  to  weaken  its  hold  upon  the 
respect  of  the  people,  to  break  down  the  barriers 
which  surround  it,  to  make  it  the  mere  sport  of 
temporary  majorities,  tends  to  the  great  injury  of 
18 


274  '^^^  EXECUTIVE  POWER 

our  government,  and  inflicts  a  wound  upon  constitu- 
tional liberties The  removal  from  office  of 

the  chief  magistrate  shoul(^  be  free  from  the  taint 
of  party  ;  leave  no  reasonable  ground  of  suspicion 
upon  the  motives  of  those  who  inflict  the  penalty, 
and  address  itself  to  the  country  and  the  civilized 
world  as  a  measure  justlj^  called  for  by  the  gravity 
of  the  crime  and  the  necessity  of  its  punishment. 
Anything  less  than  this,  especially  when  the  offense 
is  not  defined  by  any  law,  would  in  my  judgment 
not  be  justified,  by  a  calm  and  considerate  opinion, 
as  a  cause  for  removal  of  a  President  of  the  United 
States." 

He  then  proceeded  to  show  that  the  Senate  ought 
to  confine  itself  to  the  specific  charges  preferred 
against  the  accused  in  the  articles  of  impeachment, 
and  to  the  proofs  ■  offered  to  establish  them.  He 
added  these  memorable  words : 

"  To  the  suggestion  that  popular  opinion  demands 
the  conviction  of  the  President  on  these  charges, 
I  reply  that  he  is  not  now  on  trial  before  the  peo- 
ple, but  before  the  Senate,  f  n  the  words  of  Lord 
Eldon,  upon  the  trial  of  the  Queen,  'I  take  no 
notice  of  what  is  passing  out  of  doors,  because  I 
am  supposed  constitutionally  not  to  be  acquainted 
with  it.'  And  again,  '  it  is  the  duty  of  those  on 
whom  a  judicial  task  is  imposed  to  meet  reproach 
and  not  court  popularity.'  The  people  have  not 
heard   the   evidence   as   we  have   heard  it.     The 


IN  THE  UNITED  STATES,  275 

responsibility  is  not  on  them  but  upon  us.  Tbey 
have  not  taken  an  oath  to  'do  impartial  justice 
according  to  the  Constitution  and  the  laws.'  I  have 
taken  that  oath.  I  cannot  render  judgment  upon 
their  convictions,  nor  can  they  transfer  to  them- 
selves my  punishment  if  I  violate  my  own.  And 
I  should  consider  myself  undeserving  the  confidence 
of  that  just  and  intelligent  people  who  imposed 
upon  me  this  great  responsibility,  and  unworthy  a 
place  among  honorable  men,  if,  for  any  fear  of  pub- 
lic repl-obation,  and  for  the  sake  of  securing  popular 
favor,  I  should  disregard  the  conviction  of  my 
judgment  and  my  conscience. 

"  The  consequences  which  may  follow  either  from 
conviction  or  acquittal  are  not  for  me,  with  my 
convictions,  to  consider.  The  future  is  in  the 
hands  of  Him  who  made  and  governs  the  universe, 
and  the  fear  that  He  will  not  govern  it  wisely  and 
well  would  not  excuse  me  for  a  violation  of  His 
law."^ 

The  Senator  who  uttered  these  noble  words  is  no 
more.  May  they  be  meditated  on  and  understood 
by  all  those  who  desire  to  establish  in  other  coun- 
tries a  free  republican  government. 

These  opposing  views  were  presented  with  equal 
clearness  and  ability.  The  time  for  a  decision  had 
now  come.     According  to  the  terrns  of  the  Consti- 

1  Opinion  of  William  V.  Fessenden.    Trial  of  Andrew  Johiusont 
937  et  seq. 


276  THE  EXECUTIVE  POWER 

tution  tlie  conviction  of  the  President  required  a 
vote  of  two-tliirds  of  the  Senators  present ;  and  it 
is  due  to  this  protecting  clause  that  Mr.  Johnson 
was  acquitted.  ^ 

In  this  way  the  procedure  by  way  of  impeach- 
ment, which  had  been  until  then  undefined,  and 
which  under  certain  exceptional  circumstances 
might  have  menaced  the  President,  was  explained, 
and  a  precedent  solemnly  established  which  in  all 
probability  will  be  accepted  as  binding  in  all  subse- 
quent similar  cases.  * 

The  result  proves  how  difficult  in  the  future  will 
be  such  a  proceeding.  Unless  the  evidence  adduced 
clearly  shows  that  the  President  has  committed  a 
crime  or  a  misdemeanor,  subjecting  him  to  indict- 
ment and  punishment  as  for  a  violation  of  a  fed- 
eral law,  it  will  be  almost  impossible  to  convict 
him.  He  is  then  independent.  Congress  ought  not 
to  rely  upon  an  impeachment  as  a  means  of  con- 
trolling him. 

It  may,  without  doubt,  be  said  that  practically 
the  President  is  not  liable  to  any  jurisdiction ;  that 
during  the  exercise  of  his  power  he  is  freed  from 
the  dictation  of  the  people  as  well  as  of  the  legis- 
lative authority.  But  if  the  people  could  depose 
him,  a  much  more  serious  inconvenience  would 
ensue,  for  he  would  then  cease  to  be  independent. 

1  As  will  be  seen,  we  do  not  here  express  an  opinion  on  the  suflfl- 
ciency  of  the  proofs  to  sustain  the  articles  of  impeachment. 


IN  THE  UNITED  STATES.  277 

This  would  bring  about  an  anarcby  fatal  to  tlie 
country,  and  still  more  fatal  to  liberty. 

If,  on  the  other  hand,  the  Senate  had  the  power 
to  remove  a  President  who  did  not  concur  in  their 
opinions,  the  legislative  branch  of  the  govern- 
ment would  become  supreme,  and  he  be  wholly 
subordinated  to  it.  Then  the  adjustment  of  equal 
powers  counter-balancing  each  other,  framed  by 
the  convention  of  1787,  would  instantly  be  de- 
stroyed. The  United  States-  would  be  governed 
by  all-powerful  assemblies.  Would  they  profit  by 
such  a  change?  Certainly  not.  In  democracies 
an  assembly  is  generally  incapable  of  directing  the 
government.  It  may  make  laws  and  be  peculiarly 
fitted  to  restrain  power,  but  is  nearly  always 
unsuited  for  its  prolonged  exercise. 

Thus  the  fathers  of  the  American  republic, 
having  to  choose  between  an  imperfect  presidential 
responsibility,  and  the  much  greater  evils  growing 
out  of  popular  or  legislative  intervention,  evinced 
great  wisdom  in  assuring  the  independence  of  the 
Executive  Power ! 


CHAPTER  XII. 

CAUSES  WHICH   MIGHT  MODIFY  THE   CONSTITUTION 
OF    THE  UNITED   STATES. 

COTEMPOEARY  documents  prove  that  the 
framers  of  the  Constitution  were  not  at  all  as- 
sured of  its  duration  ;  for  we  seldom  find  in 
the  journals  and  writings  of  the  day,  aq  expression 
of  unalloyed  satisfaction.  The  convention  limited 
itself  "to  proposing  to  the  people  to  make  an  ex- 
periment. 

A  feeling  of  doubt  and  uncertainty  continued 
up  to  the  close  of  that  century.  Even  after  the 
presidency  of  Washington  many  Americans  had 
serious  misgivings  about  the  future  of  the  republic. 
When  a  new  party  came  into  power  under  Presi- 
dent Jefferson*  prominent  Federalists  believed  that 
the  experiment  of  a  republic  had  failed.  ^  How-^ 
ever,  Jefferson  took  a  juster  view  of  things.  If, 
as  he  said  in  1796,  "an  anglican,  monarchical,  aris- 
tocratical   party  has   sprung   up,    whose    avowed 

1  March  4, 1801. 

2  Letter  of  JefTerson  to  PhiUp  Mazzeio,  24th  April,  1796.    See  Jef- 
ferson's Writings,  Vol.  IV.  p.  193. 

(278) 


IN  THE  UNITED  STATES,  279 

object  is  to  draw  over  us  the  substance  as  they 
have  already  done  the  forms  of  the  British  gov- 
ernment ;  the  main  body  of  our  citizens,  however, 
remain  true  to  their  republican  principles;  the 
whole  landed  interest  is  republican,  and  so  is  a 
great  mass  of  talents."  ^  After  1801  the  republic 
became  consolidated,  and  assumed  those  strongly 
marked  features  which  it  has  ever  since  retained. 
The  people  have  no  longer  any  doubt  of  its  stabil- 
ity, and  even  begin  to  think  that  it  is  destined  to 
immortality. 

It  is  not  our  province  to  contradict  them.  How- 
ever, it  is  proper  to  note  lurking  in  these  institu- 
tions the  causes  of  ruin,  whose  development  and 
growth  statesmen  should  labor  to  arrest. 

The  American  republic  is  founded  upon  univer- 
sal suffrage.  The  constituted  authorities  depend 
upon  the  people,  the  supreme  arbiters,  who  are 
called  upon  from  time  to  time  to  pronounce  deci- 
sions from  which  there  is  no  appeal.  Hitherto 
they  have  performed  this  duty  with  remarkable 
intelligence.  It  is  not  then  surprising  that  the 
great  political  school,  founded  by  Jefferson,  has 
placed  absolute  confidence  in  their  wisdom,  and,  it 
might  almost  be  said,  their  infallibility.  However, 
why  refrain  from  here  recalling  the  very  different 
opinion  that  Hamilton  had  the  courage  to  express? 
He  says :  "It  is  an  unquestionable  truth,  that  the 

Jefferson's  Writings,  Vol.  IV.  p.  347. 


28o  THE  EXECUTIVE  POWER 

body  of  the  people  in  every  country  desire  sincerely 
its  prosperity,  bat  it  is  equally  unquestionable  that 
they  do  not  possess  the  discernment  and  stability 
necessary  for  systeniatic  government."  ^ 

So  far  Jefierson,  rather  than  Hamilton,  appears 
to  have  been  right. 

However,  it  must  be  remarked,  that  a  govern- 
ment was  never  established  upon  a  principle  more 
logical  and  at  the  same  time  more  easy  to  be  per- 
verted. What  constant  efforts  are  required  to  ren- 
der an  entire  people  capable  of  mastering  the  most 
complex  questions  of  policy  and  government ! 
^hat  a  degree  of  virtue  and  wisdom  in  the 
masses  do  such  institutions  pre-suppose?  And, 
nevertheless,  the  very  day  when  they  lose  these  rare 
qualities,  the  main  spring  of  a  republican  govern- 
ment will  be  broken. 

If  the  capacity  of  the  citizens  of  the  Union  for 
self-government,  their  sense  of  right  and  love  of 
public  j  ustice  deteriorate,  the  first,  symptoms  of  the 
change  will  probably  be  noticed  in  the  organi-zation 
of  the  States.  It  may  happen  that  first  at  one  point, 
and  soon  after  at  another,  unrebuked  corruption  will 
commence  in  the  local  governments.  They  will 
then  be  subject  to  rapid  decay.  From  the  day  when 
they  can  no  longer  be  maintained  in  all  their  origi- 
nal vigor  and  purity,  or  become  incapable  of  an- 
swering the  great  ends  for  which  they  were  created, 

1  See  EUiott's  Debates  on  the  Federal  Constitution,  Vol.  II.,  p.  302. 


JN  7 HE  UNITED  STATES.  281 

the  people  will  naturally  look  to  the  federal  author- 
ity and  ask  that  it  may  be  substituted  for  them. 

The  opinions  of  Hamilton  confirm  this  view. 
This  determined  partisan  of  a  strong  central  power 
strenuously  labored  to  increase  the  prerogatives 
of  the  President,  and  to  diminish,  to  the  great- 
est practicable  extent,  those  of  the  States.  His 
speech  in  the  convention  and  the  draft  which  he 
submitted  furnish  conclusive  proof  of  this.  ^  He 
favored  the  appointment  by  the  general  government 
of  the  executive  of  each  State,  who  was  to  be  in- 
vested with  a  negative  upon  its  legislation.  He 
would  thus  have  destroyed  in  part  these  local  auto- 
nomies, and  this  proposition  was  in  harmony  with 
the  general  features  of  his  plan. 

Now  the  continued  existence  of  the  American 
republic  may  be  largely  ascribed  to  the  refusal  of 
the  convention  to  adopt  the  views  of  Hamilton. 
Whenever  the  American  people  shall  reverse  that 
decision  and  modify  the  Executive  Power  as  he 
desired  to  organize  it,  the  inauguration  of  a  new 
republic  might,  perhaps,  be  possible ;  but  the  insti- 
tutions founded  by  the  convention  of  1787  will 
have  ceased  to  exist. 

And  yet,  if  there  were  a  publicist  so  bold  as  to 
affirm  that  the  future  existence  of  the  States  is 
beyond  the  reach  of  danger,  it  would  only  be 
necessary  to  call  his  attention  to  very  recent  events 

1  The  Madison  Papers,  Vol.  II.,  p.  890  et  seq. 


282  THE  EXECUTIVE  POWER 

in  the  South.  The  doctrine  of  State  rights  and 
State  sovereignty,  with  all  its  extreme  practical 
consequences,  was  never  in  any  part  of  the  Union 
so  widely  spread  as  in  Yirginia,  the  Carolinas  and 
Georgia.  It  was  the  corner-stone  of  the  political 
faith  of  the  masses.  They  clung  to  it  with  the 
fervor  and  unshaken  constancy  of  true  believers, 
and  in  the  late  civil  war  sealed  their  devotion  with 
their  blood.  These  commonwealths,  during  the 
whole  struggle,  gave  proofs  of  their  endurance  and 
tenacity;  yet  in  1866  it  was  held  in  Washington 
that  they  had  no  longer  a  government,  and  that  the 
federal  authority  might  engage  in  the  temporary 
administration  of  their  affairs  without  having  its 
will  resisted  or  questioned.  Who  would  have  said, 
fifteen  years  ago,  that  such  things  could  come  to 
pass?  In  view  of  such  significant  facts,  very  rash 
must  he  be  who  should  venture  to  afl&rm  that 
nothing  of  the  sort  could  take  place  elsewhere. 
But  without  dwelling  upon  this  longer,  it  is  enough 
to  observe  that  if  the  vitality  of  the  local  govern- 
ments should  diminish,  the  central  power  would 
be  thereby  proportionately  augmented. 

Then  the  question  would  at  once  arise  whether 
the  legislative  or  executive  branch  of  the  govern- 
ment would  take  the  ascendancy.  Now,  whatever 
may  be  the  apparent  strength  of  the  first,  it  does 
not  require  a  prophet's  eye  to  foresee  the  ultimate 
triumph  of  the  second.     It  may  assuredly  happen 


IN  THE  UNITED  STATES.  283 

that  the  legislative  assemblies  might  at  first  make 
everything  yield  to  them,  but  let  no  one  believe  in 
their  enduring  success;  they  would  soon  become 
powerless,  and  perish  by  their  own  blunders.  Tbey 
would  believe  themselves  sustained,  long  after  they 
had  been  abandoned  by  the  people,  and  a  day  would 
come  when  they  would  be  in  danger  of  annihilation 
without  even  understanding  the  reason. 

At  the  time  when  the  American  Constitution 
was  formed,  political  science  did  not  possess  that 
information  on  the  nature  of  legislative  assemblies 
which  experience  has  since  furnished.  As  we 
have  seen,  the  convention  took  every  precaution 
against  what  was  called  "  the  usurping  instincts  of 
legislative  bodies."  It  did  not  calculate  the  effect 
of  democratic  institutions  upon  public  habits  and 
modes  of  thought,  nor,  in  a  society  where  all  are 
equal,  the  predilection  of  the  masses  for  the  Execu- 
tive Power.  No  one  at  that  time  appeared  to 
suspect  that  the  President  might  one  day  become 
the  favorite  representative  of  the  people.  ^ 

1  Jefferson,  in  his  autobiography,  has  made  a  remark  upon  the 
assemblies  of  his  day  which  deserves  to  be  quoted.  He  says :  "  I 
served  with  General  Washington  in  the  Legislature  of  Virginia 
before  the  Revolution,  and  during  it  with  Dr.  Franklin  in  Congress, 
and  I  have  never  heard  either  of  them  speak  ten  minutes  at  a  time, 
nor  to  any  but  the  main  point,  which  was  to  decide  the  question." 
Jefferson  wrote  these  lines  in  1S21,  and  added:  "If  the  present 
Congress  errs  in  too  much  talking,  how  can  it  be  otherwise  in  a 
body  to  which  the  people  send  one  hundred  and  fifty  lawyers, 
whose  trade  it  is  to  question  everything,  yield  nothing,  and  talk 
by  the  hour?  That  one  hundred  and  fifty  lawyers  should  do 
business  together,  ought  not  to  be  expected."— Je^erson's  Works, 
Vol.  i.,  pp.  58-59. 


284  ^-^-^  EXECUTIVE  POWER 

However  that  may  be,  so  long  as  political  activity 
in  the  States  remains  undiminished,  and  the  exist- 
ing division  of  sovereignty  between  them  and  the 
national  government  continues,  the  equilibrium  be- 
tween the  legislative  and  the  executive  authority 
will  not  be  deranged.  The  latter  can  not  imperil 
the  Constitution,  unless  the  local  autonomies  first 
disappear  or  become  sensibly  weakened. 

But  these  are  not  the  only  dangers  to  which  the 
Constitution  may  eventually  be  exposed.  We 
have  elsewhere  seen  in  what  manner  President 
Washington  became  the  faithful  interpreter  of  the 
thoughts  of  the  Philadelphia  Convention.  The  Ad- 
ministration he  organized  proposed  to  avoid  as  far 
as  possible  foreign  complications.  As  shown  in  an- 
other chapter  of  this  book,  he,  on  retiring  from 
ofl&ce,  insisted  upon  the  continuance  of  his  policy  of 
neutrality.  The  faithful  adherence  of  his  successors 
to  it  has  essentially  contributed  to  maintain  the 
republic.  An  active  and  energetic  foreign  policy 
necessarily  implies  that  the  executive  who  directs 
it  is  permanent  and  clothed  with  powers  in  propor- 
tion to  his  vigor  of  action.  At  the  same  time,  com- 
binations with  other  governments  can  be  of  value 
only  so  far  as  they  are  upheld  by  an  exhibition  of 
adequate  strength,  or  in  other  words,  they  cannot 
be  formed  without  strongly  organized  land  and  sea 
forces. 

If,  then,  a  passion  for  conquest    and  territorial 


IN  THE  UNITED  STATES.  285 

acquisitions  should  take  root  and  spread  in  the 
United  States,  it  would  soon  and  inevitably  lead  to 
an  increase  of  the  powers  of  the  President.  A 
glance  at  the  map  of  North  America  will  show  that 
the  United  States  may  be  extended,  either  by  the 
annexation  of  Canada,  the  conquest  of  Mexico  or 
the  acquisition  of  the  Larger  and  Smaller  Antilles. 
In  their  essential  characteristics  the  people  of  Cana- 
da are  not  unlike  those  of  the  republic ;  almost  all 
speak  English,  and  are  accustomed  to  the  working 
of  a  free  government.  Were  they  to  be  incorpo- 
rated into  the  Union,  they  would  readily  conform 
to  its  customs  and  institutions.  But  such  assuredly 
would  not  be  the  case  with  the  Mexicans  *or  the 
mixed  population  of  different  races  in  the  Antilles. 
Whenever  the  government  acquires  these  countries, 
it  will  be  obliged  to  exercise  direct  authority  over 
them  and  provide  for  their  wants ;  in  a  word,  to 
establish  and  maintain,  in  their  midst,  a  complete 
organization  of  the  public  service.  Then  it  would 
itself  enter  upon  a  new  departure,  and  assume  a 
preponderating  importance.  The  executive  would 
be  led  to  a  constant  and  vigorous  intervention  in 
the  affairs  of  the  annexed  territories.  Whenever 
his  sphere  of  duty  becomes  thus  enlarged,  the  Con- 
stitution will  have  undergone  such  vital  changes 
that  it  will  be  scarcely  recognized.  A  very  strong 
government  will  then  be  developed,  much  more  re- 
sembling the  favorite  plan  of  Hamilton  than  that 


286  THE  EXECUTIVE  POWER 

whicli  sprung  from  the  deliberations  at  Phila- 
delphia. 

If,  then,  the  exercise  of  popular  sovereignty  such, 
as  has  been  witnessed  for  more  than  eighty  years, 
should  cease,  and  the  organization  of  the  States  lose 
its  present  strength,  the  powers  of  the  central  gov- 
ernment, and  especially  the  executive -branch,  would 
in  a  corresponding  degree  be  enlarged.  It  is  also 
quite  true  that  a  change  of  foreign  policy  and  an 
undue  territorial  extension  would,  for  different 
reasons,  bring  about  an  analogous  transformation. 
In  a  word,  the  political  machinery  of  the  United 
States  is  so  constructed  that  if  any  one  of  its  prin- 
cipal pivots  or  springs  be  displaced  or  injured,  the 
whole  system  would  cease  to  work. 

In  case  the  national  government,  by  reason  of 
some  one  of  the  causes  just  indicated,  should  be- 
come greatly  extended,  would  it  be  possible  to 
establish  a  responsible  ministry  to  represent  the 
President  in  the  two  Houses,  and  the  majority  of 
the  two  Houses  in  his  council  ?  In  other  words, 
could  the  forms  pi  the  constitutional  monarchy 
of  England  be  eventually  applied  to  the  repub- 
lic ?  An  insurmountable  objection  is  at  once  pre- 
sented. The  President  is  elected  by  the  people, 
represents  the  people,  and  is  only  responsible  to 
the  people.  Were  he  forced  to  select  a  Cabinet 
subject  to  parliamentary  influences,  and  virtually 
constituting  the  executive  government,  he  would 


*    IN  THE  UNITED  STATES.  287 

be  placed  in  an  anomalous  and  trying  situation.  He 
would  cease  to  be  the  personal  chief  whom  the 
American  Democracy  has  been  accustomed  to  re- 
spect and  the  greater  part  of  the  time  to  follow. 
The  reason  for  his  responsibihty  would  no  longer 
exist.  The  power  would  then  in  fact  pass  into  the 
hands  of  Congress.  Now  it  is,  to  say  the  least, 
very  doubtful  if  Americans  would  consent  to  be 
governed  by  a  ministry  representing  the  sense  of 
that  body  and  liable  to  be  displaced  at  its  will. 
They  could  then  no  longer  recognize,  in  the  direc- 
tion of  public  affairs,  the  individual  action  of  their 
own  elected  chief  magistrate. 

The  convention  understood  thoroughly  all  the 
machinery  of  the  British  constitution,  and  generally 
admired  it.  Almost  all  the  members  did  justice  to 
the  political  institutions  of  the  mother-country ;  and 
yet  they  rejected  the  idea  of  a  responsible  ministry, 
considering  it  as  incompatible  with  the  republic  they 
wished  to  found.  They  thought  that  the  ministry 
in  England  was  designed  to  reconcile  monarchy  and 
popular  representation ;  that  a  council  having  charge 
of  the  public  interests  should  be  placed  between  the 
crown  and  parliament.  But  when  the  United  States 
substituted  the  elective  principle  for  hereditary  roy- 
alty, the  President  was  chosen  by  the  people  to  gov- 
ern in  their  name,  and  he  should  therefore  be  respon- 
sible only  to  those  from  whom  he  derived  his  power. 

This  is  so  true,  that  even  Hamilton,  who  pre- 


288  THE  EXECUTIVE  POWER  - 

ferred  a  presidency  for  life,  and  would  have  en- 
dowed tlie  incumbent  with  large  prerogatives, 
refused  to  subject  him  to  ministerial  control. 

But  even  supposing  that  the  jurisdiction  of  the 
national  government  should  be  enlarged,  and  the 
presidential  power  greatly  augmented,  it  would  still 
be  impossible  to  organize  a  parliamentary  ministry 
without  producing  confusion  and  anarchy.  This 
innovation  would  speedily  displace  the  center  of 
the  government,  and  Congress  would,  for  a  season, 
absorb  almost  the  entire  sovereignty ;  but  soon  the 
democracy,  recalled  by  its  instincts,  would  earnestly 
insist  for  a  personal,  acting  and  responsible  chief 
magistrate. 


OPINIONS   OF  THE  PRESS. 


[The  Nation.— August  28th,  1873,  page  147.] 
A  FRENCH  STUDY  OF  AMERICAN  POLITICS.  1 

Having  been  in  this  country  for  several  years,  dur- 
ing a  period  of  great  political  activity  and  excitement, 
M.  de  Chambrun  has  had  ample  opportunities  for  obser- 
vation and  enquiry.  The  spirit  of  his  work  is  philosoph- 
ical, and  its  scope  coextensive  with  an  examination  of  the 
history,  progress  and  tendencies  of  American  constitu- 
tional government.  The  present  volume  on  the  Executive 
Power  is  to  be  followed  by  three  others,  one  of  which  is  to 
be  devoted  to  the  discussion  of  the  national  sovereignty, 
and  what  is  called  in  France  the  "  pouvoir  constituant," 
another  to  the  legislative,  and  another  to  the  judicial 
power.  The  present  volume  will  thus  apparently  be  the 
second  of  the  series. 

M.  de  Chambrun  has  done  his  work  with  care  and 
sense.  Taking  the  "Federalist"  for  his  guide,  and  sup- 
plying himself  with  current  information,  both  out  of  his 
own  experience  and  that  of  Mr.  Sumner,  Mr.  Schurz  and 
Mr.  Caleb  Cushing,  he  has  produced  a  treatise  on  the 
executive  power  of  considerable  ability.  *  *  * 

M.  de  Chambrun  is  of  the  old  school,  though  not  entirely 
of  the  old  school.  Indeed,  we  may  say  that  his  study  of 
American  politics  has  brought  him  to  conclusions  with 

(1)  Le  Pouvoir  Ex6cutif  aux  Etata-Unls ;  Etude  de  Droit  Constitutionnel 
Par  M.  Adolphe  de  Chambrun.  House's  Point,  N.  Y.  Imprimg  fit  public 
par  John  Lovell,  1873. 

19 


2  OPINIONS    OP    THE    PRESS. 

regard  to  practical  questions  which  are  in  the  main  dic- 
tated by  considerations  such  as  would  suggest  themselves 
to  an  American  ;  but  there  is  in  the  speculative  part  of  his 
work  sometimes  a  tendency  to  treat  politics  as  if  it  were 
an  exact  science,  in  the  mathematical  or  perhaps  rather 
mechanical  way  which  would  be  pursued  through  a  study 
of  the  resultant  forces  of  human-action — each  citizen  being 
considered  as  a  mechanical  unit,  governed  by  political 
laws  corresponding  to  those  of  matter.  For  example,  in 
discussing  centralization,  after  referring  to  Hamilton's 
plan  of  a  highly  centralized  government,  and  comparing 
his  views  on  the  subject  of  popular  sovereignty  with  those 
of  Jeflferson,  the  author  says,  evidently  having  in  mind 
existing  political  facts,  that  if  the  country  were  moving 
toward  the  pit  of  centralization,  it  would  probably  be  in 
the  local  state  organization  that  we  'should  see  the  first 
indications  of  it :  "  It  might  be  that,  first  at  one  point,  and 
then  at  another,  that  corruption  would  insinuate  itself  in 
the  local  governments;  then  institutions  now  vigorous 
would  be  exposed  to  rapid  decay.  The  day  when  the  peo- 
ple were  no  longer  capable  of  maintaining  them  in  the 
plenitude  of  their  force,  they  would  naturally  turn  their 
eyes  to  the  Federal  government ;  the  local  governments 
having  become  inadequate  to  their  own  needs,  would  be 
driven  into  demanding  of  the  central  power  the  substitu- 
tion of  itself  for  them."  In  this  way  the  ideas  of  Hamilton 
would  jusMfy  themselves,  (p.  349.)  *  *  * 

All  discussions  about  such  matters  as  centralization,  "  co- 
ordinate and  independent"  powers,  or  the  machinery  of 
representation,  lead  to  little  unless  they  are  preceded  by 
and  based  upon  a  study  of  the  actual  condition  and  history 
of  the  society  with  reference  to  which  they  are  carried  on. 
The  truth  of  this  proposition  M.  de  Chambrun  thoroughly 
recognizes,  though  he  at  times  lapses  from  its  application. 
As  an  illustration  of  his  perception  of  this  fundamental 
truth,  we  may  refer  to  the  wise  warning  he  gives  French 


OPINIONS   OF   THE   PRESS.  3 

readers  not  to  be  led  away  into  the  belief  that  because  a 
Republic  has  worked  well  in  America,  therefore,  it  is  suited 
to  all  other  countries.  He  insists  on  the  unquestionable 
fact  that  the  men  who  founded  the  government  were  not 
aiming  at  establishing  what  now  goes  by  the  name  of  "  The 
Republic."  They  had  the  Republic  as  little  in  their  minds 
as  they  had  the  Revolution  or  the  Commune,  They 
desired  to  arrange  a  government  which  would  replace  the 
government  they  had  overthrown,  and  they  based  their 
new  plan  on  a  lifelong  empirical  study  of  the  country  they 
meant  to  govern.    *  *  *  *  -s*-  * 

The  truth  was  that  most  of  the  leading  men  of  the  time 
were  sentimentally  attached  to  the  English  monarchy,  and 
with  regard  to  forms  of  government  were  probably  inclined, 
like  most  veteran  politicians  and  statesmen,  to  look  upon 
them  with  a  skeptical  eye,  and  to  doubt  whether  Pope  had 
not  after  all  been  right  in  allotting  to  fools  discussions 
about  political  forms,  and  to  wise  men  discussions  of  prac- 
tical remedies  for  evils  of  administration.  It  had  been  the 
corrupt  and  oppressive  administration  of  England,  not  the 
monarchy,  for  which  they  had  sadly  broken  with  the  past. 
Another  illustration  of  the  same  good  sense  may  be  found 
in  M.  de  Chambrun's  mode  of  treating  the  proposition  to 
engraft  upon  the  American  system  a  responsible  ministry, 
after  the  English  fashion.  He  points  out,  as  we  have  often 
done  in  these  columns,  that  a  responsible  ministry  would, 
in  our  system,  be  utterly  incongruous.  The  English  min- 
istry is  a  Parliamentary  Committee  which  has  really 
absolute  administrative  power,  though  it  governs  in  the 
name  of  the  crown.  In  America,  the  Executive  power 
being  in  the  hands  of  an  elective  and  responsible  President, 
the  circumstances  are  totally  different.  The  erection  of  a 
responsible  ministry  would  increase  the  power  of  Congress, 
and  at  the  same  time  diminish  that  of  the  President,  and 
it  would  completely  upset  the  balance  of  power  estabUshed 
by  the  Constitution.    The  English  system  is  a  gradual 


4  OPIMONS    OF   THE    PRESS. 

growth  of  the  English  constitution,  and  has  no  more  fitness 
for  the  American  Government  than  the  substitution  of 
French  prefects  for  the  governors  of  States  would  have. 

It  is  impossible  for  us  to  examine  in  detail  all  the  prac- 
tical conclusions  at  which  M.  de  Chambrun  arrives  in  the 
course  of  his  examination  of  the  Executive  power.  His 
discussions  include  such  subjects  as  the  election  of  the 
President  and  Vice  President,  the  constitution  of  the  exe- 
cutive power,  the  organization  of  the  departments,  and  the 
subordinate  official  system ;  the  relations  of  the  President 
with  Congress ;  the  right  of  declaring  war  (a  valuable 
chapter) ;  the  relations  of  the  President  with  the  judiciary ; 
the  Senate  considered  as  an  executive  council ;  the  rela- 
tions of  the  President  with  the  State ;  the  condition  of  the 
Executive  Power  under  Mr.  Lincoln ;  and  the  impeach- 
ment of  Mr.  Johnson. 


iliYom  the  Philadelphia  Press— Extracts.'] 
CHAMBRUN   ON   EXECUTIVE   POWER  IN   THE   UNITED   STATES. 

Observant  Americans  have  had  frequent  occasion  to 
note  the  difierence  in  character  and  style  between  the 
writings  of  Frenchmen  on  the  United  States  and  those  of 
Englishmen.  Examples  exist  of  some  few  trivial  and  ill- 
tempered  French  writers  concerning  us,  like  Assollant,  for 
instance,  not  possessed  of  wit  enough  to  impart  vitality  to 
their  malice.  Meanwhile  it  is  difficult  to  find,  among 
English  travelers  here  or  English  writers  at  home,  any 
solid  and  substantial  work  on  the  United  States. 

*  *  *  *  *  *4f  -x- 

We  repeat,  the  works  written  by  Frenchmen  on  the 
United  States  are  of  a  higher  order,  and  dedicated  to  the 
careful  study  and  candid  exhibition  of  the  true  character 
of  society  and  of  government  in  America.  Such  is  the 
spirit  of  the  earliest  among  the  French  travelers  in  the 


OPINIONS   OP   THE    PRESS.  5 

United  States ;  for  instance,  the  Due  de  la  Rochefoucald- 
Liancourt  and  M.  Brissot  de  Warville,  and  it  is  conspic- 
uously apparent  in  all  those  of  a  recent  date,  such  as  M. 
Ampere,  M.  Duvergier  de  Hauranne,  and  above  all,  M.  de 
Tocqueville,  whose  great  work  is  indeed  a  classic  essay  on 
the  philosophy  of  government  as  illustrated  in  the  political 
history  of  the  United  States.  And  the  same  spirit  animates 
the  writings  of  Frenchmen  at  home ;  as,  for  instance,  the 
political  and  historical  writings  regarding  us  from  the  pen 
of  M.  Edouard  Laboulaye,  and  of  Madame  Cornelis  de 
Witt,  daughter  of  M.  Guizot,  and  of  M.  Guizot  himself,  the 
patriarch  of  the  literature  and  statesmanship  of  France. 

We  now  have  before  us  another  remarkable  work  on  the 
United  States,  by  a  Frenchman,  lately  published,  entitled 
"  Le  Pouvoir  Ex6cutif  aux  Etats  Unis,  Etude  de  droit  Con- 
stitutionnel,  par  M.  Adolphe  de  Chambrun."  M.  de  Cham- 
brun  has  resided  many  years  in  Washington,  with  ample 
opportunity  to  study  the  institutions  of  the  United  States, 
not  only  as  they  appear  on  paper,  but  also  in  their  practical 
workings  as  a  living  fact,  and  in  this  work  he  has  discussed 
those  institutions  in  a  spirit  worthy  of  his  great  predeces-r 
sor,  M.  de  Tocqueville.  *  ^  *  ^ 

The  work,  it  is  thus  perceived,  is  but  the  part  of  a  larger 
design  ;  that  is  to  say,  the  exposition  of  the  political  insti- 
tutions of  the  United  States  as  a  whole,  the  present  publi- 
cation disposing  only  of  so  much  as  relates  to  the  Execu- 
tive Power.  The  introductory  chapter  tends  to  show  that 
the  author  may  also  have  had  in  view  the  special  purpose 
of  enlightening  his  countrymen  on  the  particular  question 
of  how  far  the  republican  institutions  of  the  United  States 
are  capable  of  adaptation  to  France. 

All  these  important  and  interesting  subjects  are  discussed 
by  M.  de  Chambrun  on  careful  consideration  of  the  perti- 
nent political  and  juridical  literature,  and  with  the  same 
acute  and  discriminating  comprehension  of  the  actualUiea 


6  OPINIONS   OF   THE   PRESS 

of  the  subject  which  distinguish  tlie  great  wor-k  of  M,  de 
Tocqueville,  and  which  are  also  perceptible  in  the  instruc- 
tive work  of  M.  Bagehot  on  the  British  constitution. 

M.  de  Chambrun's  book  is  one  which  every  American 
may  read  with  pleasure,  because  of  the  candor  and  good 
faith  with  which  it  is  written,  and  with  profit,  because  of 
its  complete  and  acute  analysis  of  our  institutions,  notwith- 
standing its  more  particular  application  to  the  great  ques- 
tions of  public  policy  which  are  now  undergoing  discussion 
in  France. 


[Extracts  from  notice  of  the  Baltimore  Oazette.] 

WHAT  A  STRANGER  THINKS. 

We  have  had  an  opportunity  of  examining  a  very  curious 
and  interesting  publication.  It  is  a  tract,  as  it  were,  a 
"study"  of  a  single  constitutional  theme — "Executive 
power  in  the  United  States."  It  is  written  in  French,  the 
author  being  M.  de  Chambrun,  an  attach^  or  counselor  of 
the  French  Legation  at  Washington.  As  the  produc- 
tion of  an  observant  and  intelligent  foreigner,  it  is  very 
curious  indeed.  It  purports  to  be  one  of  a  series  of  essays 
on  the  Federal  Constitution,  but  is,  in  itself,  perfect  and 
complete,  and,  beginning  literally  at  the  beginning,  it  shows 
us  what,  in  the  judgment  of  a  stranger.  Executive  prerog- 
ative has  grown  to  be.  It  is  strictly  seeing  ourselves  as 
others  see  us.  The  theory  of  the  book  may  be  easily  stated. 
Assuming  the  ground  that  the  secret  of  the  decay  or  deca- 
dence of  written  Constitutions  has  been  in  the  effort  to 
provide  with  logical  precision  for  all  conceivable  contin- 
gencies, M.  DE  Chambrun  asserts  that  the  vitality  of  ours 
is  due  to  its  looseness,  its  accommodating  capacity ;  and  of 
this  he  finds  a  notable  illustration  in  the  provisions  as  to 
the  Executive.  Years  ago  Judge  Upshur,  in  his  admirable 
essay  in  reply  to  Story's  latitudinarianism,  detected  this 
looseness  of  phrase,  but,  being  a  strict  constructionist, 


OPINIONS   OF   THE   PRESS.  7 

denounced  it  as  a  defect,  opening  the  door  to  great  abuse. 
The  French  writer,  naturally  enough,  regards  it  as  a  merit 
and  tracing  our  story  from  Washington's  Neutrality  Pro- 
clamation— which  was  not  authorized  by  any  letter  of  the 
Constitution — down  to  Mr.  Lincoln's  re-construction 
experiment,  endeavors  to  show,  and  in  some  instances 
does  show,  the  conservative  effect  of  this  very  exorbitance. 
The  chapter  on  the  Washington  foreign  policy,  and  espec- 
ially the  difficulty  with  Genet  and  revolutionary  France, 
is  one  of  the  most  interesting  portions  of  this  pleasing 
volume.  Reading  it,  one  cannot  fail  to  be  impressed  by  the 
contrast  between  the  French  student's  almost  reverential 
tone  with  reference  to  our  past,  and  the  flippant,  icono- 
clastic style  of  the  Englishman,  who  periodically  "does" 
our  history  for  New  England's  leading  magazine.  The 
portion  of  M.  de  Chambrun's  volume  which  one  reads 
with  most  interest  is  that  which  relates  to  Executive  power 
as  exercised  without  resistance  by  Mr.  Lincoln,  and 
attempted  unsuccessfully  by  his  immediate  successor. 

The  story  of  the  Lincoln  and  Johnson  reconstruction 
experiments  is  very  cleverly  told.  Much  more  is  implied 
than  is  distinctly  stated,  as,  for  instance,  when,  without  the 
expression  of  an  opinion  of  his  own,  M.deChambrun  quotes 
at  length  Thaddeus  Stevens'  venomous  speech  in  1867. 

There  is  on  all  these  questions  and  subjects  a  dispassion- 
ate and  meditative  air  in  this  book  that  is  at  once  winning 
and  impressive.  It  is  a  valuable  contribution  to  the  politi- 
cal literature  of  the  times,  and,  as  such,  from  a  stranger's 
open,  we  are  glad  to  be  among  the  first  to  welcome  it. 


[Appleton^s  Journal.] 

An  opportune  work  at  this  time  of  the  formation  of  re- 
publican governments  in  Europe,  is  that  just  published  by 
the  Marquis  Adolphe  de  Chambrun,  "  On  the  Executive 


8  OPINIONS    OF    THE    PRESS. 

Power  in  the  United  States"  {Le  Pouvoir  Executif  aux  Etats- 
Unis,  Etude  de  Droit  Constltutionnel) .  So  many  changes  have 
taken  place  in  American  politics  since  the  publication  of 
M.  de  Tocqueville's  celebrated  work,  that  a  supplement  to 
it  has  become  indispensable  for  the  proper  understanding 
of  the  present  status  of  our  constitutional  law  ;  and  M.  de 
Chambrun,  having  made  American  institutions  the  special 
object  of  careful  investigation,  has  acquired  admirable 
^qualifications  for  undertaking  this  task,  and  acquits  him- 
self of  it  in  a  very  creditable  manner,  bringing  to  bear  upon 
his  labors  a  dispassionate  and  dignified  spirit  of  inquiry, 
statesmanlike  and  judicial  views,  and  the  ^most  friendly 
disposition  toward  the  American  people.  M.  de  Chambrun 
abstains  from  a  discussion  of  the  vast  ethnological  and 
psychological  changes  which  have  revolutionized  the  so- 
cial fabric  of  this  country,  since  from  a  few  million  of 
European  settlers,  chiefly  of  the  Anglo-Saxon  stock,  in 
whom  a  vigorous  moral  mettle  predominates  to  a  favora- 
ble extent  over  merely  personal  aims  of  life,  the  popula- 
tion has  reached  nearly  forty  million,  chiefly  recruited 
from  Europeans,  who  abruptly  pass  here  from  pauperism 
to  a  life  of  affluence  and  luxury,  and  hence  are  more  de- 
voted than  the  early  settlers  to  exclusively  individual  in- 
terests. To  this  social  revolution,  which  may  account  for 
many  of  the  present  phenomena  in  public  life,  M.  de  Cham- 
brun could  not  possibly  advert  as  within  the  scope  of  his 
researches,  which,  as  the  title  of  the  book  modestly  avers, 
is  confined  to  an  essay  on  constitutional  law,  and  deals  ex- 
clusively with  political  formulae,  laws,  and  practices.  Yet 
in  the  narrower  scope  which  he  has  himself  assigned  to  his 
researches,  he  has  achieved  a  great  success  by  throwing 
light  upon  many  political  and  constitutional  indications 
and  episodes  which  heretofore  were  obscure,  especially  to 
the  European  mind,  and  by  examining,  with  nice  discrimi- 
nation and  a  religious  regard  for  standard  American  au- 
thorities, the  new  complexion  of  public  affairs  as  created 


OPINIONS   OP   THE   PRESS.  9 

by  the  civil  war;  the  abolition  of  slavery ;  the  reconstruc- 
tion of  the  Southern  States  ;  the  greater  tendency  toward 
centralization  ;  and  the  proposed  substitution  of  a  direct 
popular  vote  for  electoral  colleges  in  presidential  elections; 
the  proposition  to  extend  the  presidential  term  to  six 
years,  and  to  confine  each  president  to  one  term  instead 
of  making  him  reeligible  after  four  years'  tenure  of  office  ; 
the  doctrine  of  neutrality  in  foreign  affairs ;  the  influence 
of  conventions  or  packed  partisan  assemblies  upon  the  ex- 
pression of  the  popular  will,  and  by  many  other  peculiar 
circumstances.  M.  de  Chambrun  has  arranged  his  work 
with  great  tact,  so  as  to  make  it  useful  as  a  book  of  refer- 
ence, and  as  such  it  cannot  but  prove  of  the  highest  value 
to  statesmen  and  constitutional  lawyers,  as  well  as  to  stu- 
dents of  American  institutions,  and  especially  to  those 
embryo  republicans  in  France  and  Spain  who  begin  to  make 
experiments  in  that  peculiar  political  structure  which,  in 
this  country,  though  only  one  hundred  years  old,  seems 
to  possess  already  all  the  characteristics  of  advanced  age. 
The  work  opens  with  an  introduction,  and  consists  of 
twelve  chapters.  It  is  written  in  a  concise  and  clear  style, 
making  it  very  readable  even  to  those  who  would  perhaps 
not  enjo}'-,  to  the  same  extent,  more  intricate  specimens  of 
the  French  language.  (Published  by  John  Lovell,  Eouse's 
Point,  New  York,  1873.) 


ilTie  World.— Extracts.'] 
EXECUTIVE  POWER. 


Le  Pouvoik  Exkcutib'  aux  Etats-Unis— Etude  de  Droit  Constitu- 
TiONNKL.  Par  M.  Adolphe  De  Chambrun.  Rouse's  Point,  N.  Y. : 
Imprimg  et  Public  par  Jolin  Lovell.    1873.  8vo  pp,.  359. 

There  are  two  prominent  thoughts  the  reading  of  this 
exceedingly  clever  volume  suggest  which  we  cannot,  on 
the  threshold  of  criticism,  refrain  from  expressing.  How 
utterly  unsound  and  illusory  is  the  notion — a  sort  of  inher- 


10  OPINIONS   OF   THE   PRESS. 

itance  from  our  ancestors — that  no  one  can  write  a  scientific 
treatise  upon  constitutions  and  laws  expressed  in  English 
but  one  who  speaks  and  writes  the  English  language.  We 
.are  apt  to  forget  that  De  Lolme  was  a  Frenchman  or  Swiss. 
Here,  too,  in  M.  de  Chambrun's  volume  we  have  a  perfectly 
scientific  "  study"  of  a  single  constitutional  function  of  our 
government,  expressed  in  the  most  precise  language, 
founded  on  a  careful  examination  of  authorities  which  are 
exactly  given,  and  evolving  with  distinctness  the  results  to 
which  attentive  study  has  led.  It  is  indeed  purely  a  polit- 
ico-philosophical evolution,  in  which,  without  effort,  the 
reader  accompanies  the  writer  to  his  conclusion.  The  other 
suggestion  prompted  is  this :  How  immeasurably  inferior 
is  what  may  be  termed  our  subordinate  diplomacy — our 
secretaries  of  legation  and  attach6s — to  those  of  other 
nations.      *  *  -x-  •«•  -s^-  *  * 

The  author  has  gone  laboriously  to  study  the  philoso- 
phy, theoretical  and  practical,  of  this  government,  seeking 
information  everywhere:  and  the  ripened  fruit  is  the  be- 
ginning and  a  promise  of  the  best  and  most  scientific  essay 
on  the  Constitution  that  has  yet  appeared.  This,  too, 
under  circumstances  of  embarrassment  and  diflficulty  with 
reference  to  matters  at  home  which  were  quite  sufficient 
to  disarm  any  less  resolute  student.  *  *  * 

He  tells  us  in  his  "  advertisement"  that  this  modest 
"monograph"  on  executive  power  is  but  one  of  a  series 
yet  in  progress,  which  will  only  be  complete  when  it  shall 
have  treated  of  "  national  sovereignty"  (we  quote  his  exact 
words)  "  and  constituent  power  of  the  legislative  function 
and  of  the  judiciary."  This,  then,  is  strictly  a  tentative 
publication.  *  *  ^f  ^t  *  * 

It  is  by  no  means  easy,  within  our  narrow  newspaper 
limit,  to  do  justice  to  M.  de  Chambrun's  "  evolution."  His 
preliminary  chapter  describes  the  origin  of  the  growth,  one 
branch  of  which  he  strives  to  illustrate.  He  feels  the  per- 
plexity as  every  one  must,  in  detecting  in  revolutionary 


OPINIONS   OF   THE   PRESS.  11 

revelations  the  germ  of  "  a  republic."  "  It  is,"  nays  he, 
"  singularly  difficult  to  find  in  the  writings  of  the  time  a 
satisfactory  explanation  of  the  manner  in  which  '  a  repub- 
lican form  of  government'  was  first  adopted  in  the  United 
States.  A  few  years  before  his  death,  Mr.  Jefferson  took 
pains  to  prepare  a  memoir,  in  which  he  told  the  part  he 
had  in  the  struggle  of  the  thirteen  colonies— in  the  Decla- 
ration of  Independence,  and  the  events  which  followed  it. 
The  word  '  republic^  is  not  once  mentioned  in  this  work."  M.  de 
Chambrun  dwells  largely  on  the  modes  of  Presidential 
election  and  its  obvious  deficiencies,  taking  what  we  may 
now  assume  to  be  the  popular  view  of  the  failure  of  the 
Electoral  College  machinery  and  the  misery  of  party  dom- 
ination through  the  enginery  of  national  conventions.  We 
have  not  room  to  notice  further  M.  de  Chambrun's  initiate 
chapters,  hastening  to  one  (seventh)  on  what  is  termed 
"Federal  Administration,"  which  is  capital.  He  dissents 
from  Judge  Upshur's  view,  who  thought,  as  with  prescience 
of  to-day,  the  Constitution  defective  in  that  it  used  terms 
with  reference  to  the  President  which  left  him  at  liberty  (we 
quote  exactly)  "to  neglect  his  duties  and  enlarge  his 
powers."  M.  de  Chambrun  sees  a  merit  in  this,  and  reason- 
ing, as  he  evidently  does,  from  the  case  of  our  civil  war 
experience,  perhaps  he  is  right.  "Why,"  says  he  (184), 
"  have  so  many  written  constitutions,  monarchical  and 
republican,  been  shipwrecked?  Simply  because  they  have 
been  framed  with  such  logical  accuracy  that  their  authors 
thought  they  had  provided  for  all  contingencies."  We 
still  doubt  over  this  latitudinarianism,  and  pass  on.  The 
section  of  this  chapter  on  Washington's  policy  of  neutrality, 
which  M.  de  Chambrun  regards  as  an  illustration  of  the 
necessity  and  advantage  of  an  executive  stepping  beyond 
the  lines  of  prescribed  power,  is  really  admirable.  We  can 
but  allude  to  it  in  passing.  Of  the  same  merit  is  that  on 
"  The  Senate  considered  as  an  Executive  Council,"  especi- 
ally with  reference  to  treaties.      *  *  *  * 


12  OPINIONS   OF   THE   PRESS. 

"  The  Committee  of  Foreign  Relations,"  says  M.  de  Cham- 
brun,  "  has  always  been  composed  of  eminent  Senators, 
and  generally  has  been  presided  over  by  statesmen  of  the 
first  rank.  It  is  enough  to  mention  the  names  of  John 
Forsyth  and  Charles  Sumner  to  show  with  what  jealous 
care  the  Senate  at  critical  periods  has  chosen  those  to 
whom  functions  so  important  and  delicate  were  to  be 
intrusted.  It  is  under  them,  and  thanks  to  them,  thanks 
during  late  years  to  Charles  Sumner,  that  the  Committee 
has  played  the  first  part  in  the  history  of  the  foreign  afiairs 
of  the  Union.  In  the  midst  of  the  crises  which  the  United 
States  have  encountered  he  has  contributed  to  maintain 
the  policy  founded  by  Washington;  and  if  occasionally  the 
executive  power  has  seemed  to  go  too  far,  the  Committee 
has  known  how  to  restrain  and  check  it."     (p.  249.) 

In  his  chapter  on  the  "  Relations  of  the  President  to  the 
States"  we  recognize  M.  de  Chambrun,  with  very  slight 
exceptions,  such  as  in  his  remarks  on  conscription,  holding 
to  sound  inter-Federal-Democratic  doctrine.  Conscious 
that  we  have  drifted  to  the  very  edge  of  the  limits  which 
confine  us,  we  can  do  little  more  than  direct  the  reader's 
attention  to  one  of  the  closing  chapters — that  on  "  What 
Executive  Power  Became  Under  Mr.  Lincoln."  It  is  very 
well  done  and  full  of  interest.       ^t  *  *  * 

M.  de  Chambrun's  volume,  either  in  the  original  or  in 
'the  translation  which  we  learn  is  projected,  deserves  the 
considerate  judgment  of  all  American  readers. 


[From  The  Capilcd— Extracts.] 

Lb  PouvoiR  ExECUTiF  Aux  Etats  Unis— Utude  de  Droit  Constitu- 

TiONNKi/.    Par  M.  Adolphb  db  Chambrun. 

M.  de  Chambrun  has  given  us  a  book  on  constitutional 
law,  as  applied  to  the  Executive  Power  as' administered  in 
the, United  States,  which  will  doubtless  be  carefully  studied 
and  well  received  in  France  at  this  moment,  where  all 


OPINIONS    OF    THE    PRESS.  13 

questions  relative  to  the  organization  of  the  Executive 
authority  are  of  great  import. 

Since  the  remarkable  political  and  philosophical  work  of 
M.  de  Tocqueville,  no  book  has  appeared  written  by  a  for- 
eigner which  so  ably  treats  of  the  peculiar  features  of  our 
government,  which  so  clearly  discerns  w^here  danger  im- 
pends, or  so  candidly  appreciates  the  far-reaching  states- 
manship that  laid  a  foundation  broad  and  deep  enough  to 
survive  the  shocks  of  nearly  a  century,  and  yet  at  this  mo- 
ment presents  to  the  world  an  almost  unparalleled  great- 
ness. It  is  said  that  M.  de  Tocqueville  was  guided  and 
enlightened  in  his  observations  when  amongst  us  by  the 
masterly  minds  of  Judge  Story  and  John  Quincy  Adams ; 
and  in  like  manner,  the  Marquis  de  Chambrun  has  been 
assisted  in  arriving  at  his  very  just  conclusions  by  the  eru- 
dition and  the  vast  attainments  of  those  eminent  men,  Mr. 
Caleb  Gushing  and  Mr.  Senator  Sumner.  But  the  guidance 
of  a  mentor  does  not  of  itself  produce  wisdom  ;  and,  after 
all  due  acknowledgments  are  made,  we  must  continue  to 
admire  the  philosophical  conclusions  of  a  de  Tocqueville  and 
thejust  perceptions  of  M.  de  Chambrun.  It  is  greatly  to 
be  regretted  that  a  translation  of  the  work  has  not 
appeared  simultaneously  with  the  original.  Our  reading  and 
thinking  public  would  appreciate  some  remarks  evincing 
surprising  penetration,  a  careful  study  of  the  philos"ophy 
of  history,  and  the  acumen  of  a  legal  mind  applied  to  the 
close  study  of  our  form  of  government. 

The  author  very  justly  observes  that  in  the  creation  of 
the  republic  those  institutions  were  chosen  by  its  founders 
which  best  adapted  themselves  to  the  national  traditions 
and  the  public  sentiment  of  the  country ;  that  had  it  been 
othervnse  success  could  not  have  crowned  the  eflfort.  This 
observation  seems  sim.ple  enough,  yet  it  is  really  very  pro- 
found. For  we  Constantly  fail  to  appreciate  this  very  fact 
when  we  ask  to  have  our  institutions  indiscriminately  ap- 
plied to  other  countries.    Our  politicians  often  raise  a  great 


14  OPINIONS   OF   THE   PRESS. 

hue  and  cry  to  have  a  republic  declared,  the  moment  any 
explosion  occurs  from  out  the  seething  volcano  of  any  one 
of  the  governments  of  the  old  world.  How  inconsequent! 
We  carry  our  constitution  about  the  world  like  a  bed  of 
Procrustes,  and  attempt  to  fit  to  it  the  eflete  limbs  of  all 
other  nations  !  This  is  a  sort  of  Sangrado  treatment,  which 
would  doubtless  prove  fatal  to  as  many  legal  constitutions 
and  bring  about  as  copious  blood-letting  as  the  old  quack 
ever  indulged  in.  Have  we  ceased  to  be  a  political  experi- 
ment ourselves?  Can  we  boast  of  an  autonomy  so  perfect 
that  we  can  without  empiricism  prescribe  for  all  others  who 
are  sick  or  ill  at  ease  ? 

Our  author  very  clearly  and  gravely  explains  the  various 
manipulations  of  political  parties,  the  modus  by  which  they 
make  great  m.en,  nominate  the  leaders,  and  carry  on  presi- 
dential campaigns.  All  this  is  decidedly  more  instructive 
than  agreeable  for  a  loyal  republican,  a  lover  of  "  equal 
rights,"  to  contemplate.  Viewed  in  this  -nirror,  we  behold 
our  "  dear  public"  dancing  like  a  merry  scl  of  manikins  to 
the  skillful  wire-pulling  of  a  few  daring  men. 

The  remarks  of  our  author  are  instructive  as  regards  the 
position  held  by  the  Vice-President,  and  the  various  causes 
which  would  be  likely  always  to  produce  a  change  of  the 
policy  of  the  administration  on  his  accession  as  first  mag- 
istrate. 

We  have  also  presented  a  careful  analysis  of  the  com- 
plex powers  confided  to  the  Executive,  of  the  inherent 
powers  vested  as  a  whole,  a  synthetic  view  of  the  Execu- 
tive relations  toward  Congress,  as  well  as  toward  the  Judi- 
ciary and  the  Senate,  as  co-ordinate ;  also  relatively  to  the 
States,  in  which  the  not  infrequent  struggles  between  the 
executive  and  the  legislative  power  are  explained.  He 
shows  that  in  these  contests  the  Executivevhas  invariably 
triumphed.  Even  when  Andrew  Johnson  was  impeached 
there  was  failure  of  conviction ;  and  although  it  seemed  for 


^      OPINIONS   OF   THE   PRESS.  15 

th€  moment  that  the  power  of  the  Executive  had  been 
lessened,  yet  it  soon  became  stronger  than  ever  in  the  suc- 
ceeding administration  of  General  Grant. 

In  view  of  all  the  facts  he  considers  "  the  Executive  Power 
w  independent."  As  to  the  duration  of  our  institutions,  this 
must  depend,  of  course,  upon  the  virtue  of  the  masses. 
Whenever  demoralization  reaches  the  primal  source,  we 
must  experience  either  such  an  increase  of  centralized 
power  as  to  cease  to  be  a  republic,  or  we  will  be  subjected 
to  an  irresponsible  mob  law.  According  to  the  exposition 
of  M.  de  Chambrun  the  people  will  rather,  in  such  a  de- 
plorable eventuality,  incline  to  support  an  increase  of  Ex- 
ecutive authority,  so  as  to  avoid  the  greater  evil. 

There  are  other  nice  points  which  have  not  escaped  the' 
critical  investigations  of  this  able  jurist,  but  which  want 
of  space  forbids  us  to  indicate. 


t;EISi^RAL  LIBRARY 

14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

RENEWALS  ONLY— TEL.  NO.  642^405 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recalL 


RECEIVei) 

JAN  50  70-5  PAJ 

LOAN   DEPT. 

v;Aa3  0l972  7'- 

R&rOLU   Nttil 

yit-mMk^t 

LD21A-60m-6,'69 
(J9096sl0)476-A-32 


General  Library 
University  of  California 


^-         2l&16^2 


»  ^>:^ 


^NIV^ilSlTy^  OP-^CAUFORNIA  I^IBRARY 


(\ 


\'i  ^ 


/ 


